United States v. Gabrion

no- AuWerter provide calculated” plain- allege does not AuWerter

tice. the Glass visited that he aware were tiffs though Further, even rarely. so offices present physically often was not AuWerter reasonable be offices, it would the Glass addressed mail to believe plaintiffs would offices employer’s his him at him. reach

VII. reasons, AFFIRM we foregoing For af- part. We REVERSE part granting order court’s district firm dismiss- to GECC judgment summary affirm We also case. ing judg- summary entry court’s district plaintiffs’ on defendants favor of ment 502(a)(3) reverse We claim. ERISA judg- summary entry court’s district ERISA plaintiffs’ defendants ment we cross-appeal, 502(a)(2) On the claim. dismissal court’s district reverse cross- indemnification defendants’ Glass NLP. against claim America, UNITED STATES Plaintiff-Appellee, II, GABRION, Charles Marvin Defendant-Appellant. 02-1461, 02-1386, 02-1570. Nos. Appeals, Court Circuit. Sixth 28, 2007. Feb. Argued: 14, 2008. March Filed: Decided J.,

BATCHELDER, delivered MOORE, (pp. J. court. opinion opinion separate 857-76), delivered MERRITT, J. judgment. concurring in separate a 876-87), delivered (pp. dissenting opinion.

OPINION BATCHELDER, Circuit M.

ALICE Judge. criminal from a appeal this pre- with the confronted

conviction, arewe court a district of whether issue cursory matter subject has fed- for murder —the prosecution criminal subject predicates for which eral statute having the murder’s on matter proper- certain on committed been with- question property ty—when dispositive forest. national certain is whether question government’s within the land falls Because, this territorial subject court does, the district case, it De- Clarke, Federal Judy C. ARGUED: pros- criminal this matter Califor- Diego, Diego, San San fenders ecution. & O’Donnell, McNally S. nia, Margaret Ap- for Frankfort, Kentucky, O’Donnell, I. United Assistant Meyer, E. Joan pellant. Michigan, Rapids, United States Attorney, Grand

States On June Judy C. the fed finding BRIEF: ON acting Appellee. Attorney, for Diego, of San States Defenders the United sitting in Clarke, jury Federal grand eral S. O’Don- California, Margaret District the Western Diego, for Court San District O’Don- McNally & McNally, Marvin Gabrion nell, charged M. Michigan, Kevin Appellant. murder, Kentucky, U.S.C. Frankfort, degree nell, committing first States within Meyer, Assistant 1111(a), E. a location § Joan Ap- Michigan, and territo Rapids, maritime Attorney, special Grand government’s 7(3), § which U.S.C. pellee. jurisdiction, rial 1111(b).1 § U.S.C. felony under capital reads, in its indictment text BATCHELDER, MERRITT, Before: entirety: Judges. MOORE, Circuit Act, 18 therefore, Crimes the Assimilative clear, does case abundantly to be 1. Just state-law- applies to 13(a), in- It law. U.S.C. any state involve any law, punishable namely 18 made “not crimes based a violation volves applicable meaning (murder), is neither Congress,” enactment pun- murder, issue, made been crime relevant. nor Congress, by an enactment ishable Between on or about June 1111. Congress has defined and on or about July 1997, in the “special maritime and territorial County of Newaygo, in the Southern diction of the United States” to include Division Western District of “[a]ny lands reserved or acquired for the Michigan, Marvin Charles Gabrion II use of the and under the did, after deliberation, premeditation exclusive or there- and malice aforethought, willfully kill 7(3). of.” Rachel Timmerman within special Following a trial, six-day a jury convict- maritime and territorial ed Gabrion charged and the district the United drowning her in court sentenced him to death. See United Lake, Oxford which lies within the Man- Gabrion, States v. 2006 Dist. U.S. LEXIS istee National Forest. * * 1, 60578 at 2006 WL 2473978 at 1 18 U.S.C. 1111 (W.D.Mich. Aug.25, (“Defendant 2006) 18 Marvin 7 Gabrion was convicted of first de- gree murder within the special maritime Indictment, (W.D. Case No. L99-CR-76 and territorial jurisdiction of the United 1999).2 Mich. 3, June The first statute States, in violation of 18 U.S.C. 1111 and cited in indictment, the the federal murder 7. The imposed Court a sen- statute, provides in pertinent part: tence of pursuant death to 18 U.S.C. (a) Murder is the unlawful killing of a § 3594 in accordance with jury’s rec- human being with malice aforethought. (footnote ommendation.” omitted)). Ga- Every murder perpetrated poison, by brion appealed the conviction and his lying wait, in any willful, other kind of court-appointed appellate counsel asserted deliberate, malicious, premeditated and 23 claims of error.3 himself, Gabrion in a killing ... is murder the first degree. pro se supplemental brief, asserted at least

three additional claims. (b) Within special maritime and ter- Upon reviewing briefs, the panel was ritorial States, the United intrigued by a “curious issue of jurisdic- [wjhoever guilty of murder in the first tion” that had not been by addressed degree punished shall be by death or district court, but had nonetheless been imprisonment for life[.] raised on appeal, although only in foot- 14, 2. On 2002, February the United States Indictment, Superseding Case No. 1:99-CR- Attorney, acting on finding (W.D.Mich. 76 14, 2004). Feb. This su- grand jury, entered a "Superseding perceding Indict- indictment omitted the "by drown- ment,” reads, the text of which ing her entirety: accusation, its Oxford Lake” but did any alter other aspect of charge. 3, Between on or about June decision, present only subject involves July 5, or about County matter jurisdiction, opinion offers no as to the Newaygo, Southern Division of the sufficiency of either indictment. Western District Michigan, Marvin did, Charles deliberation, Gabrion II after 3. The provides concurrence thoughtful some premeditation and malice aforethought, analysis of claims, some of these such as willfully kill Rachel Timmerman within the Gabrion's complaints regarding process, due special maritime and territorial equal protection, sufficiency evidence, States, of the United specifically in the jury But, instructions. stage Manistee National Forest. the proceeding prior argument on these — 18 §1111 issues—a opinion decision or on these issue 18 U.S.C. § 7 s premature. would be

843 own his court trial in the issue Specifically, briefs. appellate National jurisdiction’ the Manistee no acquired had al court pro several filed Gabrion in prosecution). est relevant motions se (Dec. 5, 72, fn. 10 Br. at Final Appellee’s the question one, raised he question. omitted). 2005) (record citations pur- government, of whether to prior initiative own Thus, our on prop- ever U.S.C. to 40 suant “fur- to parties we ordered argument, in accepted erly subject to be appears what brief ther that be- Lake surrounding Oxford land raised issue matter For- National Manistee part came only in footnote case in this time se pro his first argue tried Gabrion est. brief opening defendant’s evidentiary 24 of page at the motions government’s in briefly himlet discussed would the court hearing, but 71.” Order page at footnote brief speak. 2006). explained We (6th Mar. Cir. (Dec. fn. Br. at Final

Appellant’s 255[,] U.S.C. arises this “issue cita- record original; (brackets in 2005) first must government says that which recipro- omitted). government tions enforce- asserting law it give notice brief, its own a footnote with cated displaces it before ment it noted: which our expressed jurisdiction,” State’s argues now Defendant Court, Supreme concern ju formally accepted never 315, 63 S.Ct. Adams, U.S. portion the southern risdiction as a notice regarded to have “seems pursuant Lake Oxford Id. jurisdiction.” matter subject matter v. United Adams § 255. See specific six parties issued alsoWe L.Ed. 1122, 87 312, 63 S.Ct. which, we answers questions,4 this litigate did (1943). Defendant establishing filed been (2) has no notice If parties posed to the we questions six 4. The Court[,] [did] this does jurisdiction, as follows: were subject matter below[J have court concede Does capital in 40 referred to notice respect to the case? filed not been Forest? Manistee hoped, would assist us in resolving this further proceedings it determines are heretofore jurisdictional unaddressed is- appropriate to fully develop the record on sue. subject matter jurisdiction.” Order 6, 2006). Apr. Cir.

Rather than responding with supple- mental briefing, however, the parties filed remand, On the district accepted court a “Joint Motion to Remand for Hearing on additional briefing and held an evidentiary Subject Jurisdiction,” Matter they hearing expand the record. At that explained: hearing, Gabrion introduced 24 exhibits The exercise of federal prosecutorial and the testimony of witnesses, three power over lands national forests is government introduced nine additional ex-

dependent upon the date and method of hibits; and the parties entered a stipula- land acquisition, and the relevant state tion: statute, any, if authorizing that acquisi- It is stipulated and agreed between the tion. After preliminary research, parties that the United States does not parties jointly ask for a remand to fur- possess records of notice filings pursu- ther develop the record. This issue was ant to 255 for the Manistee litigated never in the district court so National Forest. In the absence of rec- that, beyond establishing the bare mini- ords reflecting [that] such notice has mum of the date the land acquired, was given, been [] must be conclusively the record on appeal does not contain presumed at this time that no details related to the of acquisi- method tion was accepted for post those Febru- tion, how the land acquired was and held 1,1940 ary parcels. by the Forest Service, or the title histo- ry of particular the tract. Moreover, Confronted with this accumulation of evi- expert testimony may be necessary to dence and parties’ the arguments, revised explain various issues related to land the district court explained: “The parties’ acquisition by the federal government in briefings in this Court have gone beyond the early 20th century and better inform the limited inquiry into the provi- notice the Court as to the respective argu- of sions They 255. have fo- ments of both parties. In addition, al- on cused the manner in which the United though this Court jurisdictional reviews acquired States the property that compris- novo, issues de it will allow the district es the Manistee Forest, National and the court to hear testimony and better in- United policies States’ regarding the ac- form the Court with further develop- quisition of over national forest ment of the record and its own legal land.” Gabrion, 2006 U.S. Dist. LEXIS analysis of the issue. *1, at 2006 WL 2473978 at *1. From Upon consideration of this request, this, we the district court an drafted opinion granted parties’ the motion and instructed documenting its findings and, of fact the district court on remand to “hold such through a methodical analysis in which it (3) States, Does Adams v. United supra, (5) con- any Does Michigan provide statute disposition trol issue, the or does grant of law authority enforcement to subsequent legislation or case law from the federal over Manistee Supreme the Court alter holding the of National Forest? that case? (6) Any other argument information or rel-

(4) §Does 255 apply retroactively to inter- evant to jurisdiction? this issue of acquired ests before enactment the of Order 2006). Cir. Mar. statute? with disagree does Gabrion Marvin argu- several of Gabrion’s each addressed on primer government’s much ulti- law, of conclusions ments, rendered the setting forth States United the “that concluding mately govern- the by manner prosecute [concurrent] had ob- time course the has over ment par- Lake Oxford on the occurring crimes land. tained Id. Forest.” National the Manistee cel gov- the disagrees Gabrion What *31, at LEXIS Dist. the (1) nature * the about ernment Consequently, WL of Mich- the state offered subject it had held court the district govern- the federal accepted and igan trial, and matter (2) interpretation ment con- order enter authority to hence, govern- value evidentiary and punish- prescribed impose and viction well as reports jurisdictional own ment’s ment. and, memoranda, legal the USDA’s as sub- parties and the appealed Gabrion § 480. of 16 interpretation limited on briefs supplemental mitted (Feb. 9, Br. at 1 Reply Supp. Appellant’s In his subject matter issue omitted). 2007) (citations court, Gabrion brief supplemental back then, we are sense, In one explained: gener- us is before issue and beginning on remand position Gabrion’s It was 1111(b) empowers Section same: ally the appeal now punishment impose courts exclusive, jurisdiction, any never spe- “[w]ithin committed murders otherwise or concurrent, partial, territorial maritime cial because Forest Manistee 7(3) defines States”; Section fed- interest government’s territorial maritime “special prior always, even lands eral reserved including “lands diction” (the date 1, 1940 February the United use of acquired proprieto- enacted), of a been was ju- exclusive the United And, because nature. rial consequently, thereof’; and risdiction National Manistee in the interest States’ the whether is answered to be question District the only proprietorial, is Forest federal is Forest Manistee juris- matter subject have did Court sense, we But, another jurisdiction. Gabrion Marvin prosecute to diction perspective, a new issue this confront Timmerman. Rachel murder the additional by the educated and informed opin- court’s evidence, 2007). the district (Feb. 2, record at 2-3 Br. Supp. Appellant’s briefing. supplemental parties’ ion, the and pages 38 responded government The hold, follow, with- we reasons For proposition fundamental of its support over- of Gabrion’s merits to regard to out ceded was “concurrent government federal appeal, all of ac- time at government federal and it parcel Lake Oxford quisition Na- Manistee parcel Lake Oxford Br. Supp. Appellee’s day.” this to remains therefore, district Forest, and brief, tional 2007). reply his (Feb. 7, 2at matter subject had court issues specify sought Gabrion prosecution.5 dispute: many, mean many, too word tion”—“a per isit analysis, to the proceeding Before 5. Env’t, a Better Co. v. Citizens ings,” Steel "jurisdic to note pausing worth haps Const., IV, 3,§ II. Art. 2. Supreme cl. The given Court has this “expansive” Clause an provisions There are two stated, reading unequivocally, that the United States Constitution under which pow- “doubtless has may Congress create for the er over own property analogous its prosecute police power of the several States.” property: Property crimes on federal 539-40, Kleppe, at U.S. 96 S.Ct. 2285. Clause, 3, 2, IV, § Art. cl. and the Federal “[Wjhile the power furthest reaches of the Clause, I, 8,§ Art. Enclave cl. 17.6 The granted by Property Clause have not Supreme discussed two provi Court these yet resolved, definitively been Su- [the sions, interplay, in Kleppe and their v. New preme Court repeatedly has] observed that Mexico, 2285, 426 U.S. S.Ct. power public over the land thus en- (1976). L.Ed.2d 34 Congress trusted to is without limitations.” Id. at (quotation S.Ct. 2285 marks Property Clause states: “Con omitted). short, and edits “In gress Congress shall have Power to dispose of and powers all exercises the make needful both of a Regulations proprietor Rules respecting Territory or legislature other Property public over the do- belonging to the United States.” U.S. main.” at Id. 96 S.Ct. 2285. 83, 90, subject-matter jurisdiction. L.Ed.2d is not "Jurisdic (1998) (quotation tion,” 210 omitted)—has marks and citation "special used as in the definition of meanings, least three jurisdiction” maritime and territorial (1) opinion: Congress’s legislative used in this 7(3) clearly "legislative jurisdiction,” (2) jurisdiction; prosecutor’s adju- question the sense that the lands in are under prosecutorial jurisdiction, dicative or authority government] "the [the subject jurisdiction. the federal court’s matter applicable persons make its law or activi Only three—legislative first of these Co., ties [therein].” See Fire Ins. Hartford diction, which the authority "refers to of a J., (Scalia, 113 S.Ct. 2891 dis [sovereign] applicable per- to make its law then, senting). only question, is whether activities," sons Pire Ins. Co. v. Hartford Congress legislative jurisdiction over the 764, 813, California, 509 U.S. 113 S.Ct. parcel Oxford Lake of the Manistee National J., (1993) (Scalia, dissenting) L.Ed.2d Forest, applies so that to these cir omitted)—is (quotation marks and citation ac- cumstances, triggers prosecu and thus tually at issue determinative of case. adjudicative jurisdiction tor’s and the federal (and undisputed indisputable) It subject court's matter Congress legislative jurisdiction by exercised enacting which makes the court, Although at least one a federal dis- murder, "special commission of within the court, trict has held that the Commerce maritime and territorial empowers Congress regard, Clause in this see States,” punishable federally United a offense. 674, Griffin, United States v. 58 F.2d 675 "Jurisdiction,” phrase “special as used in the (W.D.Va.1932), proposition is immaterial 1111, jurisdiction,” § maritime and territorial appeal. perhaps to this noting, It is worth certainly subject-matter jurisdic a form of however, the mere existence of three And, attorneys tion. United States are au separate provisions necessitates that each 547(1), prosecute, thorized to 28 U.S.C. limitation, provision has some in order that adjudicate, the federal courts authorized to 18 Otherwise, they coexist. the most 3231, vital of statute, violations of federal essentially them But, would render the others life- "jurisdiction,” such as as used reason, prudent less. For this I find it "special definition of maritime and apposite resolve this issue under the jurisdiction”—i.e., territorial most "lands reserved States, acquired provision—and analysis or for the use of the confine this as United much and under juris possible provision—without the exclusive or to that tread- thereof,” § 7(3)—certainly diction ing needlessly provisions. on the other

847 purchased by all Places ... over certainly ever Indeed, appears Kleppe of the State in Legislature Consent prop for—the broad not stand support—if be, shall for the Erection which the Same government’s osition Arsenals, doek-Yards, Forts, Magazines, are property owned federally rights Buildings[.]” other needful U.S. ordinary propri of an merely those never Const., I, 8,§ Art. cl. 17. “The Clause has cases to etor, two despite the “dicta construed, acquisi- and the broadly to been that, agreed has unless State effect or or cession exclusive by consent jurisdiction, Con of federal the exercise any properties partial jurisdiction ‘only rights its land are rights in gress’ ” beyond governmental purpose legitimate Kleppe, proprietor.’ See ordinary of an permissible.” Kleppe, itemized is those 538-39, (quoting 96 2285 at S.Ct. 426 U.S. 11, (citing 2285 at n. 96 S.Ct. Lowe, 426 U.S. 542 114 v. U.S. R.R. Ft. Leavenworth Co., Curry Park 304 (1885), v. Yosemite & 995, Collins L.Ed. 264 525, 527, 29 5 S.Ct. 528-30, 1009, 518, 82 L.Ed. 58 S.Ct. States, U.S. 371 U.S. v. citing Paul United (1938)). 426, 1502 292 245, 264, 9 L.Ed.2d 83 S.Ct. (1963)). is, gov if the federal That even Court, pow- labeled the Kleppe, ces a State’s expressly declined ernment Federal Enclave available under the ers acquisi at the time sion of id. legislative powers,” “derivative Clause would still—

tion, added), 541, (emphasis 96 S.Ct. 2285 authority Property Clause—hold under the explained: ordinary beyond proprietor. of an may acquire legisla- derivative Congress pertinent to analysis particularly piece, to Art. pursuant from State power tive re case, Kleppe Court present [a.k.a., I, 8, 17, of the Constitution cl. States, U.S. v. 278 to Hunt ferred Enclave consen- Clause] the Federal (1928), 200 L.Ed. 49 73 S.Ct. land, acquisition of non-con- sual State held that Arizona which the Court by the acquisition followed sensual officials prevent could not officials legislative subsequent cession State’s killing in the Kaibab deer case, authority In either over the land. Forest: may jurisdiction acquired legislative

Indeed, inconsistent with Hunt ... [is] exclusive federal range from United States the notion power, to police with no residual state ordinary proprietor an only rights of concurrent, legislative partial, land. respect [national forest] to its the State may allow jurisdiction, which may not, con- ordinary proprietor An authority. certain to exercise law, game kill trary to state (citing Paul v. 96 S.Ct. Id. land, as the Gov- [Federal] his damaging 264-65, 371 U.S. in Hunt[.] did ernment Collins, (1963); 9 L.Ed.2d S.Ct. 2285; 9,n. 1009; at 539 S.Ct. Kleppe, 528-30, James 58 S.Ct. U.S. at (explain- Co., 134, 147-49, id. at S.Ct. see also Dravo Contr. Hunt, Court, “upheld (1937); that the ing Ft. L.Ed. kill right R.R., 541-42, Government’s [Federal] at U.S. Leavenworth foliage in the damaging Clauses, 995). deer that were two reconciling the In S.Ct. forests”). explained: the Court by way of the acquired can Congress provides Enclave Clause The Federal Clause,] or exclusive Enclave Federal power: “To exercise with the Congress a within over lands jurisdiction partial all whatso- Legislation in Cases exclusive cession[; by the State’s consent or State The facts established at trial Gabrion’s but,] the or presence absence demonstrate that Rachel Timmerman’s body [Federal-Enclave-Clause-based] was found the southern portion of nothing Lake, do Congress’ diction has to with Oxford which lies on an 80-acre powers Property parcel Clause. in the Manistee National Forest. 1923, cessionf,] or is] there consent Michigan [Unless a the State of formally undoubtedly State retains consented to the cession of forest lands to territory, government, provided over federal lands within its that the State Congress equally surely ju- but would retain concurrent retains the power to risdiction over those lands. legislation respecting enact See M.C.L.S. 1923). 30, §§ (Aug. 3.401 & pursuant those 3.402 lands Property parcel question was deeded to the Clause. feder- 11, al government July 1939, on for reser- (citations 542-43, at Id. S.Ct. omit- Thus, vation as national forest. there was ted) (clarifying the State of New Mexico’s acquisition cession, and the extent of Congress’ legisla- “confus[ion of] derivative jurisdiction was described at the time of powers tive the Federal [under Enclave cession. Clause], which [we]re involved [Kleppe], [Congress’] powers under III. were]”). Clause[, Property which

Thus, As regardless any possible explained outset, was at the we inter- questions rupted regarding appeal “furthest reaches” raise the issue of subject Property Clause, 539, see id. at matter and—taking cue from 2285 the Federal Enclave Gabrion’s Clause cer footnote 20—we direct- tainly provides ed our inquiry for the federal towards the effects of 40 jurisdiction— obtain legislative U.S.C. 255 and v. Adams United 312, “ranging] jurisdic exclusive U.S. 63 S.Ct. federal L.Ed. 1421 (1943), tion with no residual as well as police power, pertinent authority, state other concurrent, partial, such as 16 legislative jurisdictional jurisdiction, statute may peculiar allow the State to national forests. authority”—over exercise certain land it acquired any legitimate “for govern A.

mental purpose,” and the extent of the depends obtained on the Prior to the enactment of 40 State’s consent to February 255 on cession of its own over that government’s acceptance juris land. See id. 96 S.Ct. 2285. “The diction acquired land “presumed was cession, terms of the to the extent that any absence on dissent [the feder they may lawfully prescribed, be deter al government’s] part.” See Ft. Leaven mine the extent jurisdic R.R., of the Federal worth 114 U.S. at 5 S.Ct. 995 Unzeuta, tion.” United (justifying presumption the basis 138, 142, 50 S.Ct. 74 L.Ed. 761 grant that the “conferred a (concerning a prosecution). federal murder benefit” on the government).7 Gabrion, 7. See 2006 U.S. Dist. LEXIS presumed prior was to 1940 in *23, ("Defendant 2006 WL 2473978 at *8 contrary."). absence evidence to the dispute does not acceptance the fact that

849 ques- in case, parcel the present In the the to jurisdiction [of transfer a such As government the federal to deeded grant a was upon rests government] expression any cession, 1939, 11, without or July through consent on State, by the of familiar of decimation with accordance follows, in the by it the that follows, grants, to in accordance applicable “[I]t principles Ac- or declined. accepted to may applicable be principles grant familiar with ab- the presumed may be pre- may be ceptance [acceptance ... that grants, intent, contrary aof evidence of sence aof evidence of absence the sumed princi- constitutional of no know we but Mason, at U.S. 302 intent,” Silas contrary by acceptance compels which ple of grant 233, because 207, S.Ct. 58 jurisdiction exclusive of an States United on benefit” a “conferred of its conception its own contrary to R.R., Leavenworth Ft. government, interests. this 995. Under 528, S.Ct. 5 114 U.S. Comm’n, U.S. 302 Tax v.Co. Mason Silas ap- presumption-of-acceptance pre-1940 (1937); 187 L.Ed. 233, 82 207, S.Ct. 186, 58 accepted proach, Waggon v.Co. Line Pipe Humble also see parcel acquired it when 857, 11 373, S.Ct. 369, 84 ner, U.S. 376 neces- was affirmation further and no 1939 (“It the established 782 L.Ed.2d sary.8 may be accept to ... refusal that rule v. Tax evidence.”); Atkinson by proved reverse to acted 1940, Congress In 419, 82 23, 20, 58 Comm’n, amending by acceptance, of presumption v. United Benson (1938); L.Ed. provision: a new to add § 2559 60, L.Ed. 330, 13 S.Ct. has States United until and “Unless appear not did it (1892) (“although hereafter over lands accepted by therefor made been had any application aforesaid, shall be it as acquired to be a conferred as it States, yet, United no such conclusively presumed to be was cession benefit, acceptance 54 Stat. See accepted.”10 been has diction presumed”). required provision deleting a govern- to sold parcel was 8. This pur- consent legislature to State Manistee in the inclusion ment regarding the provision adding chase, theory on Forest, created been which pro- (i.e., the acceptance against give presumption interest public inbe “it would case) larger part as in this issue intermingled vision certain lands, together entirety: in its states status," which paragraph, Presiden- lands, national-forest public law, (Oct. provision any other Proclamation, Notwithstanding 53 Stat. tial in the exclusive conferring obtaining benefit. 1938), thus therein or interests lands States as renumbered was 9. Section be ac- hereafter shall or been have which par- Aug. 3112, effective but the required; be shall quired 3112(c): “Pre- §as restated provision ticular any de- officer authorized other or head presumed conclusively It sumption. or establishment independent or partment accepted until been may, in such Government agency over land accepts Government may deem as he times at such cases section." in this provided State desirable, secure accept or un- therein interests or any lands codified originally was Section custody, or jurisdiction, immediate his der (June ch. Stat. pursuant situated, cession or consent are control 355 of section 1930) ("An To amend Act partial, not exclusive jurisdiction, of such Attorney permit the Statutes the Revised lands obtained, any such theretofore title accept certificates General desirable may deem as he interests in cer- by the land purchase of such acceptance indicate 1940, Congress amended cases.”). tain 850 (Feb. 1, 19 1940); Paul, see also even though the land involved here was 264-6, (“Since 83 S.Ct. 4265 1940 Con- originally acquired for forestry purposes.” gress has required the United States to (emphasis added)). Elsewhere, at least assent to the transfer of jurisdiction over one other court, Eighth the Circuit Court

the property, however it may be ac- of Appeals, has applied § 255 to a jurisdic quired.”). The phrase, critical “hereafter tional claim involving a national forest; to be acquired,” establishes, within the specifically, a habeas claim on a capital context of the itself, statute the existence murder conviction that the State of Mis of the prior, opposite presumption. souri lacked jurisdiction over the Mark Twain Supreme National Court Forest. has See indicated Han § Delo, kins v. 255 applies 977 396, F.2d 398 forests. Cir. See 1992) (“Unless Adams v. United United States 312, accepts 6,n. 1122, lands ceded by L.Ed. 1421 state (“In filing a view notice of general acceptance with the applicability Gov 19JpO ernor or [i.e., Act some other provision manner the added to state § 255, prescribes, it 10, see ], fn. supra conclusively presumed it is unnecessary to consider United States effect has not accepted juris Weeks Forest ry Act, diction. § 480, (1988).”).11 and the [State’s] statute dealing in national Finally, as the district court noted, the [i.e., forests the state’s ceding statute], ... Department of Agriculture considered the behalf of the United by filing States a notice jurisdiction, despite statute, its cession be- acceptance such with the Governor “[tjhe cause parties do not indicate [that] the such State or in such manner as may be accepted jurisdiction.” Id. at prescribed by the laws of the State where Thus, 398. the Hankins court § invoked such lands are situated. Unless and until applied it to forest, the national but— the United States accepted has with little explanation or reasoning —declined over lands hereafter acquired be as to find exclusive federal aforesaid, it shall be conclusively presumed More importantly, that no least purposes has accepted. been the present analysis, the 19, Hankins court omit- 18. Con- any ted gress consideration amended again pre-1940 pre- in October sumption of acceptance but did not alter provision. the above any See Act 9, 1940, evidence Oct of when Stat. forest Thus, was ch. created. 793. As out, pertinent turns this omission is amendment critical 255 was because addition, "Mark Twain February on National Forest was state- estab- lished ment: "Unless and Presidential until the Proclamation Sep- States has accepted jurisdiction tember 1939." See "History lands hereafter Mark be acquired Forest,” Twain aforesaid, it shall be available at http:// conclu- sively presumed that no such has www.fs.fed.us/r9/forests/marklwain/about/ (last accepted." history been visited 2008). Feb. But, the Hankins court did not acknowledge or ex- Hankins, F.2d at plain cited here 255 had not been enacted when proposition that another federal created, court was so there was no impe- applied § 255 to forest, a national tus but the for affirmative acceptance, rather, but ultimate decision in Hankins is inapposite. presumption of acceptance. Similarly, the Hankins, petitioner cited the state ces- court offered no information as to when the statute, sion Mo.Rev.Stat. (ceding 12.020 all acquired particular jurisdiction but service of process), parcel. and ar- Consequently, the analysis is incom- gued "that the state court lacked plete and reliance on Hankins must be re- because the United States had exclusive stricted to the proposition that at least one diction," Id. at 397. The court unper- was other federal court has applied § 255 to a suaded and held that the State had retained (albeit national forest perhaps incorrectly).

851 omitted; Op. (emphasis 2979 at 9665 the amendment USDA effect of meaning added). Solicitor con- emphasis new The See USDA shortly after its enactment. that, 1940) (letter (Dec. by advising copy of 18, “[a] cluded from Op. No. 2979 Solicitor, being sent to the Chief of the opinion is White, to Ed- USDA G. Mastín Service, may consider Forest so he Regional Law Di- Mynatt, F. USDA ward in which rector). whether there are certain cases newly added quoting After it feels that is desirable 255, by the Forest Service began § the Solicitor provision of to State “You state obtain question posed: reciting by it.” Id. at 9667.12 to lands administered Forester has asked be Regional that the which must be procedure advised of matter, Therefore, general § as a 255 provi- comply with this followed order apply opposite presumption and its prior answer, Solici- sion of the statute.” things to national forest Several lands. explained: tor reasoning be- support this conclusion: ap- and its common to, presumption hind the consented [W]hereas indication plication, Supreme Court’s normally pre- act was by, a State ceded Adams, application Eighth Circuit’s accepted, been to have sumed Hankins, § the USDA’s 255 § provides now [to 255] amendment § acknowledgment applicability to of 255’s no conclusively presumed that it shall be national forests.13 accepted, unless has been in the manner affirmatively accepted B. being amendment. That in the provided concept case, laws, § The national forest such as 2050 of State family (1932), unique among the of fed somewhat Code consent- Carolina South one facet is erally properties, owned but acquisition of lands for nation- ing to the own parameters universal—the of federal required by Sec- purposes, al (U.S.C., 16, ership depend congressional on enactment. Title Act tion 7 the Weeks 517) Congress specific legislation enacted acquisi- § ... will not result forests, the national which included create the Federal Gov- tion of § ernment, jurisdictional 16 statute to ac- U.S.C. action is taken unless bearing to have on appeared some jurisdiction, pursuant cept such present case.14 provided in the amendment. procedure 22, 1897, (re- l:99-CR-76, Gabrion, February 30 Stat. 36 see acted No. 12. See * 963), Stat. March see 36 WL enacted 11 n. 2006 Dist. LEXIS 60578 (the general § (“The years before almost *4 Forest Service n. 1, 1940, rule) February see 54 was enacted appears to be concur- that 'there also noted noteworthy that Con- is therefore legislation Stat. 19. It on most National rent § 9[,] any exceptions gress Region did include System not lands in Forest statute) Forest, during any except (e.g., § 480 other includes the Manistee § (Pl.Ex. and has not 255 in Eastern enactment York.' U.S.F.S. for New (edits years 27).” any exceptions the 67 identified Region Plan at Law Enforcement omitted)). since. § 480 possibility 14. exists that contends that 16 U.S.C. 13. The dissent facts might actually apply, based on the exception specific national forest is “a rule,” plainA read- namely, of this case. statutory and circumstances general more 3112). interpreta- ing that the broad If of 480 reveals (currently overly might so, opinion be excep- in this tion used mean that the that were it would position. Section 480 years: to Gabrion’s favorable pre-dated the rule almost jurisdiction, civil and crim- (the begins: "The both exception) en- purported was first § 480 (Mar. 1, 1911) (captioned “State affected. against Offenses —either President, United States pursuant excepted.”)). to the Creative Act of 1891, 16 § 471, U.S.C. 26 1103, Stat. § 24 is, There of course, nothing remarkable (Mar. 3, 1891) (-repealed 21, 1976), Oct. or about the prospect that our separate sys the Secretary of Agriculture, pursuant to tems of government, state federal, Act, Weeks 16 521, § U.S.C. 36 Stat. would each retain to enforce 963, (Mar. 1, 1911) designated —has its respective criminal laws in lands over certain federally owned lands as “national which are both sovereign. fact, when forests.” In providing for the designation considered in its proper context, provi of these forests, national Congress also sion for is perfectly prescribed the division state and understandable, mainly because national jurisdiction:15 forests, unlike other federally lands, owned The jurisdiction, both civil criminal, may have people actually residing within over persons within national forests their boundaries. The Forest Reserve shall not be affected or changed rea- provisions of the Organic Act, 30 11, Stat. son of [i.e., their the national forests’] (June 4, 34-36 1897), were drafted with existence, except so far as punish- mind, this in and included statements that ment offenses against the United addressed many aspects of habitation, this States therein is concerned; the intent rights as to ingress and egress, pros and meaning of this provision being that pecting, land claims, maintenance the State wherein any such national for- schools and churches, use, water and— est is situated not, shall by reason of the most pertinent here—civil and ju establishment thereof, lose jurisdic- its risdiction. Perhaps more to point, tion, nor the inhabitants thereof their provision for civil and criminal jurisdiction, rights and privileges citizens, as or be which eventually became 16 § U.S.C. absolved from their duties as citizens of was in light drafted of the prevailing senti the State. ment of the time: that a traditional federal 480 (codifying the Organic enclave was effectively “a state within a Act, (June Stat. 4, 1897) (cap- state,” see Howard v. Comm’rs Sinking tioned “Civil and criminal jurisdiction.”); Fund, 344 627, 73 S.Ct. reenacted under the Act, Weeks 36 Stat. L.Ed. 617 (1953), and its inhabitants were inal, persons within national forests shall vin Gabrion did not live in the Manistee Na not be affected changed or by reason of their tional Forest. Finally, the State Michigan existence ..."—“their existence" meaning the did not any jurisdiction "lose” due to "ces existence of the newly created national for Therefore, sion.” on a strict reading, § 480 But, ests. case, in this the mere "existence” may not even apply in this case. designation of the national forest did not change any jurisdiction. change juris 15. Although not included expressly, pro- this diction—to extent that there actually was vision covers tribal as well. See a "change” as it is described in Ute Utah, Indian Tribe v. 773 F.2d this statute —was effectuated the transfer of (10th Cir.1985) (en banc) (relying coupled title on 16 with the ceding State’s juris 480 to conclude that Furthermore, juris- diction. "Indian phrase "persons diction does extend

within the forest,” Indians on national as originally en lands”), acted, abrogated on grounds other meant by Hagen "inhabitants" of the national Utah, forest, merely persons who entered na tional (1994). L.Ed.2d forest to commit a dispose murder or a victim. text, See discussion in Mar infra. the national forest lands are State which of state from the benefits excepted thus simply clause clarifies located. second right to file as the citizenship, such reading of the first and reinforces edu- divorce, state receive marriage or clause. office, any “receive cation, hold vote or from state residen- derived benefits argument could be made that

[other] An Lt. Maj. E. Castlen & Stephen cy.” rejects any See categorically Block, Federal Gregory forests—by reading Exclusive Col. tion over the It!, Rid Jurisdiction: Get Legislative saying first clause (1997). 113,122 changed Mil. L.Rev. not be affected or diction shall (i.e., by to the adding the word “federal” a focus light, In 480 evinces this clause), construing this to mean first and forest, of the national the inhabitants on ju- preexisting that absence of federal themselves, and rather than the forests not be affected or risdiction shall entirety, § 480 reveals a read its when But, is changed.16 interpretation such an of labor the mere division beyond purpose of the second simply plausible because systems. state and federal between clause, expressly clarifies that: “the has two distinct clauses: The section provision being meaning and of this intent criminal, civil and jurisdiction, both ... ... lose its that the State shall within national forests persons added). short, jurisdiction” (emphasis by rea- changed shall not be affected provides designation of land that existence, except so far as son of their forest by the States as national against offenses punishment of something more—de- not—without does concerned; therein United States of their inhabitants of that land prive the and citizens, but neither does as state rights provi- of this meaning and intent [T]he protection prevent this any wherein that State being sion congres- exercising jurisdiction over from not, is situated shall national forest sionally federal crimes committed enacted thereof, by reason establishment on that land. nor the inhabitants jurisdiction, its lose appeared Organ- in the This statute first rights privileges their

thereof an- “Congress’ ic Act of which was State], or be absolved citizens [of continuing problems” with the[] swer to citizens of the State. from their duties as national-forest con- six-year-old the then merely provides—in broad The first clause “ramp- least of which was cept, not the its no will lose terms—that State reservation ant” and “indiscriminate” merely by lands national for- “generally tion over forest settled” of acres of millions lands as designation land, of those that such apprehension virtue and the est and, forests, concomitantly, inhab- “might prove disastrous reservation desig- lands.” thus on or near these living that have been itants of lands settlers Mexico, 438 v. New rights, to have the United States will continue nated 696, 705-06, 57 L.Ed.2d 98 S.Ct. of citizens of the and duties privileges, except course, any stand-alone inter- for even this 16. Of Consequent- plausi- crimes. to be both over federal pretation of this first clause sensible, exception at the end of phrase "offenses ble and ly, the dissent construes punishment ("except far as meaning only the clause so against States” as the United against United States therein is of concerned”) offenses applica- of nationwide federal crimes certain something other than mean must text, But, infra, that as discussed tion. plainly says—i.e., it would be nonsen- what it insupportable and incorrect. construction categorically rejects say sical to marks, citations, (quotation the State—and ensures the mere omitted) (from (recounting ori- change ownership footnotes privately- gins legislation).17 of the national forest owned to federally-owned) State-owned (as Recall sentiment of the time was designation the “national forest” enclave) a “federal enclave” was considered a variety of federal does not result state,” “state within a so the birth of this exclusive federal over these national-forest-type new federal enclave— lands. Specifically, govern- coupled “rampant” with the and “indis- prosecute ment could federal offenses com- criminate” reservation of lands as national owned, newly mitted these newly desig- forests, if con- national forests were to be nated, newly established national sidered traditional federal enclaves—pres- lands, infra, nothing see but else changed; aged expectation an national-for- the inhabitants were not excepted from the might incidentally concept est remove benefits or citizenship burdens State (and territory substantial amount and the prevented State was not therein) governance inhabitants from the exercising jurisdiction, just its own as it correspondingly deny prior would have done to the transition. those inhabitants the associated benefits The second clause simply clarifies this citizenship. and burdens of State view. context, § In this 480’s first clause clear- 2.

ly implications—i.e., addresses these type birth of this new of vast federal en- important The second aspect of § clave within the territorial boundaries of 480 exception is the for against “offenses Supreme 17. The quently Court documented this histo- indiscriminately. made President Mexico, Cleveland, ry in United States v. New particular, responded pleas 696, 3012, (1978), 98 S.Ct. 57 greater L.Ed.2d 1052 of protective conservationists for explaining: by reserving measures some 21 million 'generally acres of settled’ forest land on 1800’s, many In the mid and late 22, February 1897. President Cleveland's public ravaged forests on the domain were protest action drew strong immediate and and the fear arose that the forest lands from Congressmen Western who felt that might disappear, leaving soon the United ‘hasty and ill considered' reservation shortage States with a both of timber and might prove living disastrous to settlers encourage watersheds with which to stream on or near these lands. preventing flows while floods. It was in Congress' continuing answer to these answer Congress to these fears that in 1891 problems suspended was three-fold. It apart authorized the President 'set 22, February President’s Executive Order of reserve, any Territory having ... State 1897; carefully purposes defined the forests, public bearing part any land which national forests could in the future public part wholly lands or in covered reserved; provided be and it a charter for undergrowth, with timber or whether of management and economic uses not, public commercial value or as reserva- Organic within the forests. Administration 3, 1891, 24, tions.’ § Creative Act of Mar. 4, 1897, 34, Act of June 30 Stat. 16 U.S.C. 1103, amended, 26 § Stat. as 16 U.S.C. 471 seq. 473 et 1976). (repealed 705-06, (footnotes Id. at 98 S.Ct. 3012 omit- unfortunately Creative Act of 1891 ted); 13, see also id. 706 n. 98 S.Ct. 3012 did problems not solve the forest (“A major complaint Congress- of Western expanding dismay Nation. To the rampant reserving men was that of forest conservationists, the new national forests by might lands the United States leave 'no adequately regulat- were not attended and opportunity enlargement there for further ed; cutting fires and indiscriminate timber agricul- civilization the establishment of anguish (1897) continued their mining.’ toll. To the Cong. ture or 30 Rec. 1281 settlers, (Sen. Cannon).”). Western reservations were fre-

855 in the national federal offenses committed long “It has been United States.” forest. against the words ‘offense established encompass all offenses States’

the United States, not the United against the laws of at the United States just directed offenses Finally, is com United States v. or victim.” target as monly allowing concurrent understood Cir.1989) (6th Gibson, 318, 321 881 F.2d jurisdiction over the national forests. States, 568, F. v. (citing Radin United Fields, 923, v. 516 F.3d United States (2d Cir.1911); Thomas v. United 571-72 *19-20, LEXIS 4018 at 2008 WL U.S.App. (8th Cir.1907)); 897, 900-01 (10th 156 F. Feb.25, 2008); Cir. see *6 States, 52 v. accord Cotton also, v. e.g., California, United States (9th Cir.1980) 11 How. 13 L.Ed. 675 (citing § F.2d against Unit- (explaining “Congress that offenses proposition has de which are defined ed States are those the states shall maintain termined statute); United States criminal and civil congressional Cir.1953) (rea- forests”); Gill, States v. 204 F.2d (4th Cir.1996) Raffield, 82 F.3d enacting Title soning Congress, when any way not in (holding that 480 “does against “crimes the United meant governments preclude state and federal Congress “offenses which States” to mean entering relationship into concur had Congress and for which defined jurisdiction”); United States v. rent penalty”); fixed a cf. cf. (5th Cir.2004) Avants, 433, 367 F.3d 440 (“The United States courts of the district jurisdiction (upholding federal and affirm jurisdiction, exclusive original shall have for a murder com ing a federal conviction States, of all offenses the courts of the Forest, mitted in the Homochitto National States.”); against the laws United acquittal in state despite the defendant’s (“each 547(1) § United States court, to or con albeit without reference district, shall—prose- within his attorney, 480); § States v. United sideration against all offenses cute for (4th Cir.2003) Jackson, 273, F.3d II, Const., 2,§ cl. 1 States”); Art. jurisdiction and convic (upholding federal (the to grant the “Power President has Pisgah committed in tion for a murder Pardons for Offenses Reprieves Forest, the defendant’s despite States”). against the United crime in state conviction for the same 480). court, §to albeit without reference ex By express of its virtue own § not bar the federal ception, 480 does Congress in effect “By this enactment obtaining jurisdiction from government accept legislative exclusive has declined against lands, prosecution offenses jurisdiction over forest reserve The violation a fed the United States. that the state shall not expressly provided case, namely in this nor the jurisdiction respect eral statute in this lose its 1111, against the United inhabitants from their duties is an offense ‘be absolved ” Cook, Therefore, v. prosecution if this State.’ Wilson States. even citizens of the 663, 474, 487, 90 L.Ed. jurisdictional changed” 66 S.Ct. “affected or 327 U.S. added). (1946) The Court change (emphasis is ex such effect quo, status to ac- Congress declined say by the statute. Section did pressly allowed say nor did any jurisdiction, preventing cept read as simply cannot be change in any Congress accept declined prosecuting the federal (1) jurisdiction. simply Court said filing relinquishment notice of Congress State, did want federal the Governor of the to take effect (2) upon acceptance, be exclusive. See also United States v. taking such action Fresno, 452, 455, County 97 towards relinquishment “as the laws of the 699, 50 L.Ed.2d 683 (noting may State provide.” otherwise See 7 “[pjursuant the U.S.C. 2268. There is no evidence of States retain civil and criminal relinquishment present case. over the notwithstanding national forests The letters reports entered into the fact that the national forests are owned record fall well short of this procedure, Government”). by the Federal Concur- and are therefore insufficient.18 rent is fine. IV. Indeed, majority of this court has at the State of Michigan formally tacitly idea

least endorsed the to the consented cession of its forest lands provides for concurrent See government, expressly re- States, Stupak-Thrall v. United 70 F.3d serving concurrent (6th Cir.1995), grant vacated on §§ those lands. See M.C.L.S. 3.401- reh’g banc, Cir.1996) en 81 F.3d 651 02. An parcel 80-acre containing the south- (Moore, J., writing, joined by Nelson and portion ern of Oxford Lake was deeded to JJ.) (“Section Brown, merely provides July that both the state and the United States and is currently part of the Na- Manistee shall general have tional Forest. There was federal acquisi- areas.”); individual citizens consent, tion and state and the extent of Stupak-Thrall 89 F.3d jurisdiction was at the described time of (6th Cir.1996) (affg without consent. Because this transfer occurred opinion by equally an en divided banc prior acceptance court) (Moore, J., concurring, joined by presumed. was Congress has not acted to Merritt, C.J., J.) (“I Daughtrey, would retrocede back to the State of panel opinion adhere to the entirety, its Michigan. incorporate and I by reference.”); it herein J., id. at (Boggs, 1284 n. 18 dissenting, Rachel Timmerman was found mur- joined Norris, Suhrheinrich, and Bat- dered on parcel this of the Manistee Na- JJ.) chelder, (acknowledging, agreeing and tional July 5, 1997, Forest on and the with, the opinion “§ concurrence’s that indicted, federal prosecuted, provide does for concurrent federal-state and convicted Marvin Gabrion for this jurisdiction”). crime. The federal government had con- legislative current jurisdiction over the

C. Manistee National in Forest accordance Congress I, has a specif- § established with hence, Art. cl. and territori- ic procedure by which the Secretary of al prosecution over the of this Agriculture can relinquish crime, 7(3). federal accordance with 18 U.S.C. tion over national forest lands: either To the extent that the govern- federal administrative-agen- The dissent cites five explain sent fails to the existence of these cy opinions, or executive-branch all of which areas or reconcile their existence with its the- preference against ju- demonstrate a federal ory "§ negates prohibits and the lands, risdiction on national forest but all of exercise of either exclusive or concurrent fed- which also concede that some national forest jurisdiction." eral theory, Under the dissent's areas nonetheless exist under either exclusive legally these areas could exist. HTlnQ rvr nruiniirnant Í7=>rlA-ra1 rlic* respond obligated arewe I believe cause land, coupled this acquisition ment’s by Gabrion made arguments to additional ju- concurrent cession Michigan’s with not address. does opinion lead changed” “affected risdiction, somehow govern- whether questions Manistee status jurisdictional Marvin prosecute has ment Forest, federal National the U.S. (“Gabrion”) and whether against Gabrion “offense an for Gabrion prosecuted District for Western Court nonethe- District thus States,” was and the United are trial over § 480. Michigan with compliance less that, believe I ones. complex mur- exceedingly with Gabrion charged jury grand particularly involves case statute, although 18 U.S.C. federal under der and statuto- of Constitutional thorny issues territori- federal within committed prec- review a careful jury petit interpretation, 7(3). ry After jurisdiction, al conclusion clear court yields charge, edent on that him convicted Congress preclude does to federal pursuant to death him sentenced juris- legislative concurrent accepting prosecu- federal Both statute, § 3594. Where forests. the national juris- over court diction district tor and ex- legislative diction. subject-matter have ists, courts pur- prosecutions V. murders § 1111 to 18 U.S.C. suant district foregoing, on Based reasoning My forests. these place take analysis its both correct was court opin- Circuit Tenth a recent accords of federal issue its conclusion upholding ion dis- Therefore, AFFIRM we diction. a defendant prosecution subject it had finding court’s trict murder first-degree committing trial, Gabrion’s matter in Okla- Forest the Ouachita an in to enter authority correspondingly, Fields, F.3d homa.1 impose punish- conviction order (10th Cir. 483281, at *2-*9 WL a date will set we Consequently, ment. 2008). Feb.25, Gabrion’s merits on the argument hear er- remaining claims his appeal THE § 480 ALLOW DOES I. ror. TO GOVERNMENT FEDERAL JU- CONCURRENT EXERCISE MOORE, Circuit NELSON KAREN NATIONAL OVER RISDICTION judgment. concurring Judge, LANDS? FOREST lead judgment concur I to delineate us requires case This my because separately write opinion powers Constitutional Congress’s of extent be- respects in some differs analysis national in a abuse, a victim of murder other two to note relevant I also find 1. Carolina, 18 in violation involving in North forest convictions upheld have circuits cir- these Although each 924(j). § Circuit Fifth U.S.C. forests. in national murder (5th courts district Avants, implicitly F.3d 433 found v. cuits States crimi- Ernest Cir.2004), subject-matter conviction upheld the §§ the issue discussed neither Henry prosecutions, Avants nal this murder racially For opinions. motivated their 7(3), a 1966 for of reason, Mississippi. analysis, but located our they a national aid do not Jackson, 327 v. in United Circuit relevant Fourth nevertheless are decisions convic- Cir.2003), upheld District F.3d Western whether question of of a for use Jackson Allen Richard case. in this Michigan had sexual kidnapping, in relation firearm under the Property, Federal Enclave, and gressional authority under the Interstate Interstate Commerce Clauses as well as Commerce Clause. United States v. Grif- Congress’s intent enacting I fin, 58 F.2d (W-D.Va.1932)(hold- have reached the conclusion that under ing that the Weeks Act is a valid exercise these three clauses the Constitution Congress’s authority to regulate inter- Congress has broad authority to legislate state commerce because its purpose is to with respect to the national forests. The increase the navigability of streams provision of the Weeks Act specifically ad- protecting watersheds). their Just as the dressing jurisdiction over the national for- creation of the national forests represent- ests, § 480, provides for the exercise of ed an exercise of Congress’s powers under concurrent federal and state legislative ju- the Interstate Commerce Clause, so too risdiction over forests, where the would administering and protecting federal accepts land and its inhabitants via criminal law. tion. Because 480 allows for concurrent In addition, the Federal Enclave Clause legislative jurisdiction by the gov- gives Congress legislative jurisdiction over ernment, it also allows for the exercise of lands ceded to it. In Collins v. Yosemite subject-matter jurisdiction by the federal Park Co., & Curry U.S. courts when Congress creates cause of 82 L.Ed. (1938), the Su- action. Congress has created cause preme Court held that “[t]he States of the action via'18 which allows Union and the National Government may prosecution of murder in the make mutually satisfactory arrangements special territorial and maritime as to jurisdiction of territory within their ” and via 18 U.S.C. borders.... The Court held that in two 7,§ which defines In important respects the Federal Enclave turn, 18 3231 vests original juris- Clause should not be construed narrowly. diction in the federal district courts “of all First, the federal government may acquire offenses against the laws of the United qualified as well as exclusive States,” including violations of § 1111. and, land second, may do so purposes beyond those spec- A. Constitutional Authority to Exer- ified in the language of the Enclave cise Legislative Jurisdiction Clause.2 Id. 528-29, 58 S.Ct. 1009. Un- Congress legislative derives authority der Wilson Cook, 474, 486, criminalize acts perpetrated in national S.Ct. 90 L.Ed. (1946), to deter- forests from the Federal Clause, Enclave mine the extent of I,Art. 8,§ 17; cl. the Property Clause, a territory, we must look at the state IV, Art. 3,§ 2; cl. and the Interstate statute authorizing the sale as well as the Clause, Commerce Art. I, 8,§ cl. 3. Both federal statute authorizing acquisition. the dissent and opinion lead reference case, only § 480 authorizes acquisi- the Property and Federal Enclave tion, Claus- and Mich. Comp. §§ Laws 3.401- es. At least one court, district however, has 3.402 constitute the provisions state autho- upheld § 480 as a valid exercise of Con- rizing the cession of state lands. 2. "The Enclave power Clause is broader preted than to include more than edifices with four its wording First, indicates in ways. two walls.... may [I]t apply to lands used for a Congress may exercise it over more just than National Park.” Mansfield, Marla E. A Primer purchased Second, property.... the catch-all Law, Public Land 68 Wash. of L.Rev. needful Buildings’ in the Clause’s list of (1993). places subject power has been inter- Property the authority under gressional however, has also Court, Supreme The 7(3) 1111 and §§ then, Clause, is whether juris- of degree the of regardless that held “respecting” rule a “needful” Property constitute state, the aby ceded diction national including the land public enact to federal power the Congress gives Clause stands Kleppe IV, 2. cl. Kleppe Art. forests. land. federal over legislation has Congress 542-43, 96 that proposition the Mexico, U.S. New Clause Property the (1976). I think under authority broad L.Ed.2d S.Ct. ra- regarding legislation as well as Kleppe, criminal to enact statement that this Clause, pro- legislation if that forests, Enclave even the interpreting tional cases the people the State but also interpretation. only lands the not following the tects yield of the amount determine them.3 within cession statutes Irre- retains. state that the however, Con- agreement, this of spective Under Legislative Jurisdiction B. legisla- enact to power a broad has gress § 480 Supreme The land. to related tion has Consti- Congress course, if even Of “Con- that determined Kleppe Court ju- legislative exercise authority to tutional a pro- of both powers the exercises gress own its risdiction, may limit public the over legislature aof and prietor statutes. specific courts via that and The 2285. 540, 96 S.Ct. at Id. domain.” three that Therefore, having determined “that view the “traditional” rejected Court Congress give the Constitution of clauses the most powers States’ the public regarding legislative aof powers limited are the lands public wheth- question the lands, I turn next owner, a sover- property proprietor, that to exercise chosen has Congress er Wilkinson, Field The F. eign.” Charles strongly Precedent § 480. authority via Connecting Some Law: Land Public concur- provides § 480 that suggests Directions, 1 Pub. Future and Threads legislative state rent (1980). thus “Kleppe 1, 7 L.Rev. Land Supreme The forests. national over the long evolution the complete[d] enacting held Court all relegate would model, which traditional accept has declined in effect “Congress En- [Federal power police exercises legislative exclusive broad only, to a lands Clause clave] lands, expressly provided reserve Property the authority under preemptive its lose shall the state disagree I therefore at 11. Id. Clause.” Wilson, U.S. respect....” this pres- this case opinion lead reiterated Court The 663. S.Ct. case Con- clearer significantly ents civil retain “[T]he 1977: axiom Federal authority under gressional national Property than Clause Enclave fact that notwithstanding forests regarding Con- only question The Clause. for- including public lands upheld Kleppe Court Supreme The 3. plaintiffs-appel- rejected Court Free-Roaming ests. Wild constitutionality Property construction narrow lees’ Act, authorized which Burros Horses legislate Congress authorizing Clause through the Interior Secretary of the both Instead, itself. land protection only in Secre- and the Management of Land Bureau Clause Property held Court For- through Agriculture tary of pro- legislation support “to enough to broad animals. protect Service est prop- live on tecting wild animals implic- thus Court feder- not themselves are erty [and] ... legislative Congress had itly found 536-37, 2285. 96 S.Ct. Id. matters, property.” al to civil respect diction, at least 860 national forests are by owned the Federal jurisdiction concurrent over national for Government.” United States v. County pursuant ests to 16 § U.S.C. 480 and that Fresno, 452, 429 U.S. 97 S.Ct. 50 the possessed district subject-matter juris (1977). L.Ed.2d 683 These statements are diction pursuant to 28 § U.S.C. 1345. In best interpreted not as a suggestion' that case, instant the federal government the states retain exclusive legislative juris- once again possesses concurrent jurisdic diction § but rather that tion over Manistee National Forest and states retain jurisdiction concurrent with the district possessed court subject-matter Congress.4 pursuant 18 U.S.C. The Fourth and Ninth §§ Circuits up 1111(b),7(3), have and 3231.5 held concurrent federal legislative jurisdic In the 1996 case United States v. tion over the national forests as well as Raffield, (4th 82 F.3d 611 Cir.), cert. de

federal courts’ subject-matter jurisdiction nied, 519 117 over civil and criminal matters relating to L.Ed.2d (1996), the Fourth Circuit national forests. In United States v. held that the federal and govern state California, F.2d Cir. ments had concurrent legislative 1980), jurisdic the Ninth Circuit considered an ac tion over the national by forests. The Fourth the United States to recover fire- Circuit explained that suppression § U.S.C. costs related to a fire negli “means only that gently the mere started establishment state employees in a of the forest does national forest. jurisdiction alter the The Ninth Circuit found al status of land,” that a § federal district court had “does subject- not in any way preclude matter pursuant state and federal § 1345, governments from entering vests the into relation district ship courts with original jurisdiction jurisdiction.” concurrent of suits Id. at brought by 613. The Fourth government. Circuit Id. explained further 916. The Ninth that a North proceeded Circuit Carolina state ap cession stat ply state ute, law the similar absence of federal Mich. Comp. § law 3.401, Laws on the subject of a tort recovery indicated state for fire consent to concurrent juris suppression costs. Id. at diction and 916-20. that 16 § U.S.C. 551 indicated course of opinion, its the Ninth federal acceptance Circuit of jurisdiction over all stated that 16 § U.S.C. provides national for forest lands. Id. at 612. Accord concurrent state and federal legislative ju ingly, a federal district court had subject- risdiction over national forests. Id. at 919. matter prosecution for Thus, the Ninth Circuit determined Cal Jeromy Raffield’s drunk driving and refus the federal government ifornia al to submit to a breath analysis in viola language opinions suggests that forests exists when specific there is a the default assumption is that the gov- giving statute courts ju- ernment has legislative exclusive risdiction does not exist in the absence of public lands, but that provides such a statute help does us resolve this the states’ retention of case. Dissent at 881-82. In both California over national Furthermore, forests. were case, and the instant such a statute exists in provide 480 to legislative exclusive the form of 28 states, diction one would expect the respectively. only question opinions state explicitly. first-degree whether in a murder national for- est is against an offense the laws of the United 5. The argument dissent's States. For explain reasons I California in further detail merely holds that infra, I believe that it is. applicability. geographic specific eral and Act, 18 Crimes Assimilative the of Gibson, F.2d 318 States United Circuit Fourth the While § 13. U.S.C. long has “It Cir.1989), stated: we Con indicated § 551 16 U.S.C. that held ‘offense words the that established been juris of federal acceptance broad gress’s all encompass States’ the United lands, against we national all over diction United the of laws the against offenses here. reasoning similar rely on not need at the directed offenses States, just not only opinion the in functioned Section at Id. or victim.” target as States United of acceptance federal of indicator the as the interpreted Although Gibson 321. accep infra, explain IAs States” the United against “offense phrase the lands over jurisdiction of federal tance statute, 18 fraud federal used as to prior purchased government federal to believe reason is no 371, there § U.S.C. evi of absence the presumed meaning a different has phrase the that Because intent. contrary federal of dence Because § 480. U.S.C. of 16 context the exists contrary intent of evidence such no that I think binding precedent, Gibson exercise government’s the to respect with the against “offenses that hold must we par Lake Oxford the over jurisdiction of against the offenses means States” United federal the that conclude cel, must we Furthermore, States. of the United laws over the jurisdiction accepted government that suggesting precedent no exists there the to respect Therefore, with parcel. as Gabrion category, that limit should we need case, we do issue land only those to argue, the dissent as as well § 551 as statute any other on rely where of regardless federal “are that laws accep government’s federal the to indicate at 879. Dissent is committed.” crime the jurisdiction.6 of tance “offense of meaning the Restricting and decisions The California Raffield § under States” the United against pro- § 480 as of interpretation an buttress geographic general laws federal only retain states the that viding key clause the render would applicability “ex- forests national within persons of punishment the so far as “except of offenses punishment so far cept mean States” United against the fenses States.” the United against always federal The ingless. interpretation the correct I think § 480. general over offenses has creates that clause” is “except dissent’s The applicability. geographic pun- federal “except interpretation narrow laws against offenses ishment obvious that reassert merely clause” gen- both including laws of States the United al that argument dissent’s disagree 6. I Assimila- 7(3) therefore that § U.S.C. regu- § 551 language in relied Raffield Under forest. applied Act Crimes tive infractions traffic lating misdemeanor hold we should reasoning, parallel holding is lim- opinion’s that, accordingly, enforce has government’s ited This forests. national § forests. national driving in the drunk because is mandated conclusion did Circuit Fourth 882. Dissent state for concurrent allows In- violated Raffield contradict- find evidence is no there jurisdiction; " confers case that stead, in this opinion found mandatory presumption ing a accepted activities broad Gabrion parcel; Raffield, F.3d Lake Oxford tion over forests.” national affect the within 1111; falls Lake Oxford aas violated found Circuit Fourth at 612. 7(3). scope of the territori- lay within result, forests proposition renders the clause superfluous states, so long as the crime takes place in “ insignificant. ‘[A] statute ought, an area of jurisdiction. federal My inter- upon whole, to be that, so construed if pretation does not lead to the conclusion it prevented, can be clause, no sentence, or that federal would have word shall superfluous, void, be or insignif jurisdiction exclusive of state-law causes of ” icant.’ Walker, Duncan v. 533 U.S. action within national forests. The “ex- 174,121 2120,150 S.Ct. L.Ed.2d 251 cept clause” of 16 § U.S.C. 480 creates (quoting Market Hoffman, Co. v. 101 U.S. jurisdiction federal where the 112, 115, (1879)). 25 L.Ed. 782 Therefore, I pre-existing legal regime prior to cession think § gives Congress concur was exclusive state (apart from rent legislative jurisdiction regarding fed federal crimes enacted pursuant eral offenses of specific general well as Interstate Clause); Commerce the “except geographic applicability. clause” does not create an exception to concurrent federal jurisdiction.

Indeed, state a Seventh Circuit case suggests Therefore, my argument yields phrase conclu- against “offenses the Unit- sion that if a murder ed takes place States” in a includes federal laws limited national forest where the federal geographically govern- in their application to the ment has accepted special concurrent jurisdiction, maritime and territorial both the state and federal governments of the United States. In United States v. have prosecute Gill, (7th 204 F.2d 740 murder. Cir.1953), the Sev- enth upheld Circuit a conviction under 18 argues dissent my interpreta 113(b) § U.S.C. an assault with intent give would federal courts to commit sodomy that took place on a over all state crimes federalized in 18 federally registered vessel journeying (the § U.S.C. Assimilative Act) Crimes across Michigan Lake from Chicago, Illi- that take place in national forests and that nois to Michigan City, Indiana. The de- this is an unprecedented expansion of fed fendant had argued that Congress because eral jurisdiction. Dissent at 885. While had not defined and criminalized sodomy, the first part of this claim true, it could be a felony 113(b). § latter is not. At least two courts of ap Id. at 741-42. The Circuit, Seventh how- peals decisions including one in the Sixth ever, rejected this argument and held that Circuit have found federal because Indiana criminalized sodomy, un- violations of 13 that place took in nation der the Assimilative Crimes Statute and al See, forests. e.g., United States v. Ter 7(3) the assault with intent to commit ry, (4th 86 F.3d Cir.1996), cert. sodomy was a crime against the denied, States. Id. at Thus, 742-43. Gill stands L.Ed.2d (1998); United States v. for the proposition that a statute Couch, federaliz- F.3d Cir.1995). ing a state crime in areas of federal juris- We next need to consider whether any (in diction 13) case 18 makes statutes other than the Weeks Act limit this crime one committed “against legislative jurisdiction over the na- United States.” Id. tional forests. Under a traditional inter- Title 18 1111 is comparable to pretation of the Federal Clause, Enclave the Assimilative Crimes Act in that pro- we must look to the state statute authoriz- vides for the government’s prose- ing cession to determine the degree of cutorial over a (murder) crime Wilson, 327 U.S. at ordinarily within the 66 S.Ct. 663. I do believe, howev- when Su- diction after hold may still we er, that enforcement deems that a Kleppe decision Court’s preme con- administration for the necessary legislative limit can statute state lands. national the trol that lands over jurisdiction “that reiterated Kleppe owns. Subject-Matter Jurisdiction en- C. land thus public the over power ‘[t]he limita- is without Congress to trusted the need correctly identifies The dissent 2285. 539, 96 S.Ct. tions.’” legisla- relationship between clarify the to a state of the terms that reasoned Kleppe Dis- jurisdiction. subject-matter and tive the of extent the govern statute cession re- jurisdiction Legislative at 882-84. sent the not and jurisdiction of retention state’s a authority of of sphere “[t]he to fers legislative of terms to con- and laws body enact to legislative Therefore, 541-43, S.Ct. 2285. Id. to law-mak- its incidental all business duct has Congress that simply hold could we function.” ing Law DictionaRY Blaoks’ Clause Property the authority pursuant ed.1990). jurisdic- Subject-matter 1111, and § 18 U.S.C. to enact to hear power court’s to [a] “refers tion appli- preclude § 480 does class general cases determine and forests. in national cation of in proceedings [the] to which category erroneously that if believed one Even belong.” Id. at question Property reading of expansive Kleppe's has Congress whether of question of method the older replace did Clause for- over national jurisdiction legislative of federal the extent determining merely possess- Congress or whether ests Clause, Enclave Federal tion under the forests over ownership proprietorial es Congress however, conclude we must with case in this intimately connected persons over jurisdiction has criminal courts the federal whether question Forest. Manistee within first-degree over jurisdiction have acquisition consented Michigan The dissent a national forest. murder for “needed lands of States the United sug- as opinion my interprets incorrectly forests ... of national establishment Constitution, ain self-exe- gesting Michi- of Provided, the state That state: subject- manner, directly confers cuting jurisdiction a concurrent retain shall gan courts the federal jurisdiction matter lands in and States United with the Dissent national forests. murders execution respect acquired” so develops instead argument My at 882-83. Comp. Mich. process. and criminal civil of Con- chain: logical following along the relevant two Section 3.401. § Laws authority Constitutional possesses gress “the United authorized code Michigan 16 U.S.C. jurisdiction; legislative exercise make or laws and such pass States exercise; there exists for allows rules and making of such provide Congress presumption an unrebutted and criminal civil both regulations, jurisdiction legislative accepted therefor, punishment nature, provide and July parcel purchased Lake Oxford necessary for may be judgment in its the parcel that, consequently, control, protection administration, jurisdiction the territorial within lands_” lies Laws Comp. Mich. created has States; Congress Thus, Michigan authorized § 3.402. first-degree respecting action cause of of laws in violation offenses the territorial in murder apply such as given States; Congress juris- United maritime special territorial district courts over murdered (“Timmerman”) Timmerman lies this and other criminal causes within special of action. territorial the United 7(3). States as defined in I have clear Iwhy made believe (6/11/01 J.A. at 201-12 Op.). Dist. Ct. Sec- provides legis- concurrent 7(3) includes within special territo- lative by the govern- rial of the United States: ment over offenses against the United Any lands reserved or acquired for the both national and geo- limited use of the and under the graphic applicability. Congress has creat- exclusive or ed a cause of action via 18 U.S.C. thereof, any place purchased or oth- § 1111(b), which allows for prose- acquired by erwise the United by States cution of special murder territorial consent of legislature of the State in maritime of the United which be, the same shall for the erection States, and via 7(3), § 18 U.S.C. which fort, of a magazine, arsenal, dockyard, or defines that As I explain in- other needful building. fra, parcel Oxford Lake at issue lies 7(3). The district court’s con- within the territorial 7(3) clusion regarding was not an issue United States 7(3). by § defined And upon remand and was not by addressed here is where the relationship between the parties in their supplemental briefs legislative subject-matter court, before this so I will not address it becomes clear. A violation of 1111 in a here. forest, national where that falls question The before us today is whether within the scope 7(3), §of is an offense the federal government has accepted con- against the laws of the States, United as I legislative current jurisdiction over the Ox- explained have supra. turn, In 18 U.S.C. ford parcel. Lake Precedent establishes original jurisdiction vests that, in the absence of evidence of contrary federal district courts “of all offenses intent, a presumption of acceptance ju- of against the of laws the United States.” I by risdiction the federal government exists therefore believe that long so as the Ox- with respect to acquired land prior to 1940. ford parcel Lake lies within the territorial purchased the Ox- jurisdiction of the States, pursuant ford parcel Lake in July 1939, and Gabrion 7(3), §to then the United States District presented has no evidence suggesting that Court for the Western District of Michigan the federal government took the requisite correctly found that it subject-matter steps affirmative to rebut a presumption of jurisdiction over prosecution. Gabrion’s acceptance time. Department of Agriculture II. THE IS SOUTHERN THIRD OF (“USDA”) and interdepartmental opinions, OXFORD LAKE WHERE GA- written after advisory are insuf- BRION ALLEGEDLY MUR- ficient to rebut the acceptance DERED TIMMERMAN, WITHIN tion. I therefore conclude that the federal THE SPECIAL TERRITORIAL government has accepted jurisdiction over AND MARITIME JURISDICTION the Oxford parcel. Lake OF THE UNITED STATES AS DE- 7(3)? FINED IN Acceptance A. Jurisdiction Federal Government its June 2001 opinion, the district court found that the southern portion of argument Gabrion’s the federal Oxford Lake where Gabrion allegedly government never formally accepted juris- Opinions B. Administrative pursu- parcel Lake Oxford over diction unavailing. Prior § 255 is to 40 ant reasons, post-1940 opinions several For pre- rebuttable a applied 1940, courts reports, USDA, interdepartmental gov- the federal acceptance sumption Manual, ex- Service Forest and the lands public over ernment maintaining strong preference a hibit held Court Supreme owned. than concurrent rather proprietorial “con- statute cession a state when forests, are insuffi- diction act acceptance benefit, the ferred of federal presumption rebut cient to any the absence presumed to be the Oxford legislative government’s] [the dissent For- Lowe, Manistee parcel R. Co. Lake Leavenworth Fort part.” Justice Department 29 L.Ed. begin, 5 S.Ct. est. To authority v. United Benson possesses (1885); see also the USDA and not 60, L.Ed. 380,13 govern- whether to determine feder- presumed (same). The Court acts ment ab- “in the of acceptance al 28 C.F.R. land. upon committed contrary intent.” of a evidence of sence Attorney General (“The Assistant § 0.56 Comm’n, U.S. 302 Tax v.Co. Mason Silas is author- Division the Criminal charge of (1937). With 207, S.Ct. 233 186, 58 administratively whether determine ized to 1940,7the 1, February § 255 on of passage exclusive giving to start com- offenses concurrent of acceptance regarding notice by the United acquired lands upon mitted thereafter. acquired lands public arising problems to consider States, and 264, 245, States, 371 U.S. v. United Paul therefrom.”) (1963). The 292 426, L.Ed.2d 9 S.Ct. 83 Circuit Eighth Court Supreme opin- Furthermore, the executive-branch of requirement notice applied have qualify not would ions cited Gabrion af- acquired lands forest national 255 to appealed] “it unless deference Chevron States, 319 v. United Adams 1940. ter authority to delegated Congress that 1122, L.Ed. 87 6, 63 S.Ct. 312, 315 n. U.S. carrying make rules generally agency of view “[i]n (1943) (reasoning 1421 inter- agency law, and that the of the force itAct 1940 applicability general promul- was claiming deference pretation of effect consider unnecessary to authority.” of that in the exercise gated 480”); Act, 16 U.S.C. Forestry Weeks 533 U.S. Corp., v. Mead 396, 398 Delo, F.2d 977 v. Hankins L.Ed.2d 226-27, 121 S.Ct. respect Cir.1992) (holding with cited statements (2001). The USDA in Missouri Forest Twain National Mark merely opinions represent the defendant Unit- indicate not do parties “[t]he rather findings commission-report ap- jurisdiction”). accepted ed States pro- interpretations agency official than requirement notice plication rule- Department’s under mulgated logical makes lands “Interpretations authority. making pre- rebuttable prior conclude interpreta- letters —like opinion as those jurisdic- of federal acceptance of sumption statements, agen- policy tions contained forests. to national applied tion also 217, § 116 Stat. 1144 40 U.S.C. 2002, Congress renumbered 7. 107- Pub.L. No. § 3112. § 255 as cy manuals, and enforcement guidelines, with more in the United States all which of lack the force of law—do than is considered best by the Federal warrant Chevron-style deference.” agency Chris- concerned.” Id. at 35. Although tensen County, Harris several U.S. the statements express prefer- ence Congress L.Ed.2d 621 only proprie- exercise (2000). Moreover, torial ownership, statements they made after do not deny the legality enactment of legislative 255 cannot rebut the See, presumption acceptance e.g., regarding Land & prop- Natu- 480. Div., ral Res. erty acquired Dep’t Justice, before U.S. Even if Fed. we Legislative were to Jurisdiction: accept Report the statements as potential- Prepared the Public ly relevant, Land they L.Rev. probably do not Comm. represent (September (Def.ExJ) 1969) type (noting affirmative action required “only seven the Forest rebut the Service’s pre-1940 presumption of accep- properties contain other proprietorial than Mason, tance. See Silas 207- jurisdiction”); Report OS, Interdepart- 58 S.Ct. (holding that when Con- Committee, mental Part II gress “validated and ratified ‘all con- ” (Def.Ex.E) (stating that “[t]he forest ser- tracts’ in connection project, dam vice ... has accepted “the evidence [was] clear that the Federal proffered by the statutes many states, Government contemplated the continued and the vast majority of federal forest existence of jurisdiction”); state Humble lands are held by the Federal Government Pipe Line Co. v. Waggonner, in a proprietorial only”) status (emphasis 372, 857, 84 S.Ct. (1964) 11 L.Ed.2d 782 added); Report the Interdepartmental of (holding that the did Committee, Part (Def.Ex.D) I at 64, 101 not lose the jurisdiction exclusive it ac- (noting that the Department of Agriculture quired in 1930 over a federal enclave via “proprietorial” exercises ownership over cession the state Louisiana, of when lands). nearly all of its Nor do the state- United States “leased private [to a compa- deny ments the existence of federal legisla- ny] right the to exploit parts of the reser- jurisdiction tive over lands acquired before vation for oil and gas and for an oil pipe- 1940. Id. These merely statements reflect line”). efforts to jurisdictional resolve the confu- Finally, the reports themselves are not sion created the passage §of with 255, conclusive regarding question the of respect to lands acquired after the 1940 diction. The 1956 Report stated that the enactment. Roger Haines, W. Jr., Crimes terms it uses to jurisdiction describe “are Committed on Federal Property —Disor- made here only for purposes the of this derly Conduct, Jurisdictional 4 Cbim. Just. study, and they are not purported as abso- J. (1981). 393-95 lute criteria for interpreting legislation or judicial decisions, or for other purposes.” III. DOES THE PATCHWORK CHAR- Jurisdiction Over Federal Areas Within ACTER OF CONCURRENT FED- the States: Report the Interdepartmen- ERAL AND EXCLUSIVE STATE of tal Committee the Study IN Jurisdic- JURISDICTION THE MANIS- of tion Over Federal TEE Areas NATIONAL Within the FOREST VIO- LATE (1956) Part I THE (Def.Ex.D). 13-14 CONSTITUTIONAL The same GUARANTEES OF report also emphasized DUE PROCESS that EQUAL AND agency preference PROTECTION? does not determine the jurisdictional lands, status of and that of- Gabrion argues that the patchwork char- ten acquired lands before 1940 “are held acter of federal criminal

867 conclusion, I accepted not Forest, depends which National Manistee character patchwork the not think do parcels of of acquisition of date in the Man- process to due rights his land, violates gov- Forest means Fifth Amend- National istee under equal protection Gabrion on cruel prosecution prohibition as the ernment’s well ment as Eighth to 18 U.S.C. under the pursuant penalty punishment death and unusual argu- primary Eighth Amendment.9 Gabrion’s violates Amendment.8 1111 government’s ment patchwork does Neither is inconsistent patchwork equal protection right Gabrion’s violate in Furman decision Court’s Supreme Due Process Fifth Amendment’s 92 S.Ct. Georgia, 408 v. 347 U.S. Bolling Sharpe, See Clause. arbi- (1972), prohibited which L.Ed.2d L.Ed. 497, 74 S.Ct. penalty. death enforcement trary of Columbia’s District (holding J., (Douglas, S.Ct. 2726 Id. schools violated segregated maintenance 274, 92 S.Ct. id. concurring); Process Due Amendment’s Fifth id. at also concurring); see J., (Brennan, con Clause). makes (Stewart, J., concurring) 310, 92 S.Ct. law Indian that federal argument vincing Fourteenth Eighth (stating that patchwork where analogous area an offers ]” “wanton[ prohibit Amendments Pro Equal does violate penal- death imposition “freakish[ ]” Amend the Fourteenth Clause tection pattern agree I ty). While Fifth into reversely incorporated ment, For- the Manistee de Supreme Court Amendment. and 40 by 16 U.S.C. created est country” as “Indian scribed characterized can be fed patchwork complex by a “governed pattern agree that I do patchwork, v. Rei Duro state, law.” eral, and tribal rules legal set A arbitrary. clear 1, 110 S.Ct. n. na, are forest lands determines fed (1990). Whether L.Ed.2d crimi- by concurrent characterized has government or state tribal or a eral and which jurisdiction nal loca on the depends jurisdiction criminal jurisdic- by state are characterized lands committed, na the a crime where tion government because v. in Parker decision Supreme Court’s 9. The I my opinion, through V of III 8. In Sections 731, 112 308, 111 S.Ct. Dugger, the regarding argument Gabrion's discuss cites (1991), also Gabrion L.Ed.2d character patchwork Forest, penalty death well as Ga- the proposition that the National the Manistee sufficiency of irra- arbitrary regarding the an arguments imposed in be brion’s cannot manner, inapposite. to establish required similarly evidence the tional jurisdic- respecting the jury instructions the Parker, Supreme Court overturned the because issues these addressed corpus I have tion. of habeas denial Circuit's Eleventh case, on the merits they touch although Supreme the Florida ground that relief on question with intertwined they are also based penalty the death affirmed Court had subject-matter court had the district whether trial that the determination the incorrect on Were Gabrion case. mitigating nonstatutory no found court had I do arguments, any of these one on succeed 318-21, 731. 111 S.Ct. Id. at circumstances. prop- would have court district not think not involve contrast, does case instant By Furthermore, the erly exercised pro- judicial error an question whether in briefs issues three argued these parties right to rational Gabrion denied cess had 2007, to our response February filed in penalty. of the death administration briefing the issue request for tion. crime,

ture of the and whether both 465-66, 99 S.Ct. 740. The Washington perpetrator and the victim are members statute thus created patchwork jurisdiction the same tribe. See Negonsott Samuels, v. in both a geographic and thematic sense. 99, 102-03, 507 U.S. 113 S.Ct. 122 The Ninth Circuit found that the law’s L.Ed.2d 457 (describing jurisdic creation checkerboard tional rules under the Indian Country lacked a rational basis and violated the Act, Crimes Major Indian Act, Crimes Equal Protection Clause. 467-68, Id. at Act); Duro, the Kansas 495 U.S. at S.Ct. 740. The Supreme Court overturned 688, 110 S.Ct. 2053 (holding that a tribe the court appeals decision, however, ex does not have criminal jurisdiction plaining: “The lines the State has drawn nonmember Indian who commits a crime may well be difficult to administer. But on the tribe’s territory). In Washington they are no more or less so than many of Bands & Tribes Yakima Confederated the classifications pervade the law of Nation, Indian 439 U.S. 99 S.Ct. jurisdiction.” Indian Id. at 99 S.Ct. (1979), L.Ed.2d 740 Supreme Court 740. considered whether patchwork juris Gabrion argues further diction is arbitrary patch- and irrational under work character of Equal Protection Clause. The case Manistee Washington Forest, concerned law that granted resulting from the legal regime state over per Indian established sons and Indian territory 480 and state, within the violates exception process all but his due right eight to ex ante notice of subject-matter areas Indians would penalty retain for his crime. The cases cited jurisdiction on trust or restricted government lands in response are not unless a requested tribe otherwise. Id. at dispositive of this issue.10 I find Gabrion’s Cornfield, cites v. United defendant's claim that his sentence violated 17 S.Ct. process L.Ed. due because it potential exceeded the (1897), as an patchwork illustration of a sentence incorrectly cited provided aon form ownership pattern public private between to the defendant when he deported. was Id. Cornfield, however, land. is not relevant to at 1261. These cases dispositive. are not the issue of notice because the case concerned imposition Federal penalty death impli government’s regulatory powers under the greater cates far process due concerns than Property Clause question and not the whether an agency’s administrative disciplinary ac patchwork tions, violates the at issue in Farrell. And holding Due Process Clause. The further an alien Miranda-Ramirez—that had no due opinions cites two circuits, from our sister process right to expect that a criminal penalty would be the same as the one cited on a which held that lack of notice to a federal employee and to an alien criminal deportation defendant years form earlier —does not regarding penalties the exact for their acts did speak to an process individual's right due not process. violate due Dep’t In v. Farrell notice potential of the penalties for his crime Interior, 314 F.3d (Fed.Cir.2002), 590-94 before he commits it. Lastly, government the the Federal Circuit held process that due does Chase, cites United v. States Van 137 F.3d require not advance employees notice to (8th 1998), Cir. which held that a specific the disciplinary penalties to which federal district court had so long they may subject. be In United v. States Mi as sufficient evidence of acts within Indian randa-Ramirez, 309 F.3d 1255 Cir. territory existed to make out the elements of 2002), an alien criminal defendant challenged that, the offense and accordingly, the court the recommended terms imprisonment of his could admit evidence of place events that took for unauthorized reentry into the United outside of Indian territory to show the context he deported after was following Chase, convic of the likewise, crime. Van does not aggravated for an felony. Id. at help 1257-58. hand, us resolve the issue at which is not Nevertheless, the Tenth rejected Circuit the evidentiary but Constitutional in nature. concur- area of criminal however, for three unpersuasive, argument person If that rent federal First, because reasons. one side murder on first-degree committed that Gabrion time the operative was death receive the line, could he of the murder, Gabrion the committed allegedly committed person if same the penalty; he would that possibility of the had notice side of other on the first-degree murder committing penalty death the receive penal- the death line, might he receive the special the within murder premeditated consequences of jurisdictional ty. The territorial maritime murder within first-degree committing ig- that rule general “The States. is in no parcel Lake Oxford outside is of law mistake law a norance than the arbitrary respect more significant deep- prosecution to criminal no defense act same consequences jurisdictional system.” legal American rooted ly with- patchwork no were there U.S. v. United Cheek In con- Forest. National Manistee in the (1991). L.Ed.2d 111 S.Ct. juris- patchwork clusion, think I do not concerns post no ex are There facto Forest Manistee National diction regarding pause give us might that case process or right to due Gabrion’s violates Second, a had notice.11 Gabrion whether Fifth Amend- under the protection equal entering a national actor reasonable ment. possibility aware been have would have might government

that STATES UNITED THE IV. DID committed acts criminal EVI- SUFFICIENT PRESENT that the federal Third, fact therein. FIND TO FOR THE JURY DENCE TIM- DROWNED THAT GABRION parcels not all but some OXFORD THE IN MERMAN these Forest and National Manistee BY PARCEL, PURCHASED LAKE does fashion patchwork in a arrayed are GOVERNMENT FEDERAL THE death notice had no mean Gabrion 1939? IN JULY first- penalty potential be might case theory government’s if Even Manistee. within murder degree when Gabrion was alive that Timmerman had criminal con- padlocks, chains her with bound Manistee entirety of diction weigh blocks to cinder the chains arbi- nected seemingly Forest, at some boat, and into a down, took her her would person point trary geographic to drown.12 Lake into Oxford her dumped Michigan’s area of cross over that the the time operated at penalty, which he lacked argument his support of 11. crime, gave him his defendant committed potential punishment regarding notice punished might be warning” he case to "fair death, compares the instant Gabrion 297-98, 97 S.Ct. Id. at Florida, 97 S.Ct. death. Dobbert revised subsequently (1977), Florida in which fact L.Ed.2d mur- committed statute, defen- the defendant the criminal after found that Supreme Court however, Dobbert, trial, the not violate his did notice. but before der dant had Dob- Similar Id. post In laws. case. ex light on the instant on prohibition no sheds facto in procedur- issue ones at bert, held that Supreme Court concerns post the ex facto change to a stat- present here. than a substantive are not al rather Dobbert did punishment a criminal providing for ute Febru- dated indictment superseding 12. prohibition the Constitutional not violate the lan- longer contained no ary Id. at law. application post ex facto indictment, J.A. original present guage held 293-95, also The Court S.Ct. 2290. Timmer- drowned alleging that Gabrion the death allowing for Florida statute contrast, By argues Gabrion gov- that “[t]he fact that the alleged offense ernment to prove beyond failed a reason- occurred within the special maritime and able doubt that Timmerman drowned jurisdiction territorial of the United States Lake, Oxford that her even death took an is element of the crime that must be place on property. Gabrion claims alleged in the indictment and established that assuming arguendo that the federal (6/11/01 at trial.” J.A. at 202 Dist. Op. Ct. government possesses jurisdiction criminal 2). Subsequent to the district court’s over the parcel, Oxford Lake govern- opinion, however, the Tenth Circuit sitting ment proved has not the factual foundation Prentiss, en banc reversed holding that necessary to establish the indictment’s failure to allege an ele- Had Gabrion killed Timmerman outside of ment of the offense in that case did not Forest, Manistee ain dif- strip the district court of subject-matter parcel ferent of land Manistee, within and jurisdiction. United Prentiss, States v. then dumped body her Lake, into Oxford (10th Cir.2001) (en F.3d banc). government the federal would not neces- The sufficiency of indictment, however, sarily jurisdiction have over the land is not at issue in this case. where the murder took place. Thus, ac- cording Gabrion, if the federal govern- Nevertheless, in evaluating jurisdic- ment did not present sufficient evidence to tional issue we must review both legal prove beyond a reasonable doubt that Ga- conclusions of the district court and factual brion drowned Timmerman the Oxford conclusions of jury. The district court parcel, Lake then would held in its June 2001 opinion that Oxford also not be able to establish criminal Lake is within the territorial diction this case. the United States as defined under 18 7(3),

The issue of jury what standard to concluded apply reviewing the Gabrion district murdered Timmerman court’s within finding of territorial complicated States, because the question as defined in the jury intermeshed with instructions. On case, remand, merits of the as the location of district court held further the murder is an element of “that offense Weeks Act permitted the United under 18 1111(b). its June to obtain concurrent opinion, the district court had cited lands; that the State Prentiss, States v. of Michigan F.3d granted Cir.2000), for the proposition tion to the United States over national Instead, man Oxford Lake. the superseding jurisdiction of the United States. In re- alleged "did, indictment that Gabrion sponse, after government's argued brief deliberation, premeditation and malice afore- presented the evidence at trial sufficed thought, willfully kill Rachael prove Timmerman beyond a reasonable doubt that Ga- special within the maritime and territorial brion drowned Timmerman in the Oxford of the United specifically parcel, Lake which the district court had de- in Manistee National Forest.” J.A. at 83. termined to special be within the maritime In his supplemental court, brief before this territorial of the United argued Gabrion that because gov- the federal States. Accordingly, though even the su- ernment accepted had not jurisdiction over perseding indictment allege specifical- did not parcels of land within the Na- ly Manistee that Gabrion drowned Timmerman in the tional acquired Forest after Lake, southern third of Oxford this factual produced had not evidence suffi- contention is inquiry the focus our regard- cient to show Gabrion murdered ing Timmerman whether the evidence is sufficient to estab- special

within the maritime and jurisdiction. territorial lish

871 denied Ga judge appropriately district rebuts the evidence lands;” that no dismiss, in because part to motion States brion’s that the presumption the related to findings Lake factual the Oxford the accepted that jury, would in the of parcel province the were purchased when it parcel standard Gabrion, of what question 1:99— No. resolve v. United States court’s 2473978, *10 reviewing district apply in CR-76, 2006 WL to 2006). finding jurisdiction. of (W.D.Mich. Aug.25, en banc that proved government Tenth Circuit’s Despite Whether Prentiss, may parcel still consider a we in Timmerman murdered opinion Gabrion the dicta persuasive which fed find we forest land whether of national that stating in Prentiss opinion government panel eral determine, aas “[wjhile may offense, which the the court of the an element of federal law, beyond the existence jury of prove matter must area, wheth geographic a v. Go States doubt. United a reasonable Cir.1996) within (9th the offense 1093, locus mez, er the F.3d be that must element jury, an essential area is to the be must prove (prosecution Prentiss, fact.” trier of by the doubt, jurisdictional resolved a a yond reasonable line a similar Following at 967. building 206 F.3d dam requiring that element rejected Ninth Circuit reasoning, had substantial charged arson aged to dis motion government’s commerce); Par to interstate connection Rule of Civil to Federal (8th pursuant miss Ward, 302-08 622 F.2d v. ker 12(b) subject-matter for lack Procedure denied, 101 S.Ct. U.S. Cir.), cert. “ju a that involved case in a jurisdiction, (for federal rob 66 L.Ed.2d a also [that was] requirement risdictional statutes, location murder bery and offense element substantive jurisdictional is a place took crime which Nukida, 8 v. charged.” beyond proven be must element Cir.1993) (holding 665, 670 F.3d doubt). bur government’s reasonable subject-matter jurisdic the issue when the elements regarding proof den of the merits “intermeshed” tion is however, not answer the also does offense, deter be case, “should review we are what standard question of trial”) v. United States (quoting mined argu to Gabrion’s responding apply 819 F.2d Ayarza-Garda, he prove did that the ment denied, (11th Cir.), cert. Lake in Oxford Timmerman had drowned (1987)). The L.Ed.2d 404 us requires argument Gabrion’s insofar Ninth opinion, Circuit Eleventh finding court’s district to review reaching its hold quoted opinion Circuit Alan in Charles positively also cited ing, is of re standards possible two There are Miller, Federal 1A R. Arthur & Wright applying. may consider that we view Criminal Procedure: & Practice sufficien to Gabrion’s responding weWere ed.2001) (3d proposition in relation requirement cy-of-the-evidence a Rule ruling [on its may defer “court case, need we would merits devel will be if factual matters motion] forth set standard the deferential apply the deci are relevant at trial that oped Virginia, in Jackson Supreme Court if I were Even n. 1. § 194 & Id. at sion.” 2781, L.Ed.2d 307, 99 S.Ct. precedent the above agree 872

(1979).13 standard, Under the Jackson we line of the Manistee National Forest. 4 “whether, would determine viewing after (Trial 15-16). J.A. at 1172 Tr. at 1187: light evidence most favorable to That portion of the very lake contained a prosecution, any rational trier fact thick mat vegetation that made diffi- it have could found the essential elements of cult get to body. to the 4 J.A. at 1007 beyond the crime a reasonable doubt.” (Trial 954:18-21); (Trial Tr. at 1014-15 Tr. Jackson, 443 U.S. at 99 I 961:1-962:4); (Trial at 1031 Tr. at 990:11- significant, however, find it that we are not 23). Both the fisherman who discovered now reviewing the merits of the case and body and the police who recovered it are instead reviewing the district court’s testified that the vegeta- thickness finding I therefore think tion rendered it impossible body for the may that it be inappropriate to apply have floated to location from the extremely deferential Jackson standard. portion northern of the lake. 4 at J.A. Instead, might we apply the standard ordi (Trial 1014 961:13-23); Tr. at 1048-49 narily used when we review a district (Trial 1007:24-1008:4). Tr. at court’s determination regarding jurisdic tion. standard, Under this we would re The trial evidence indicated that Tim- view the district legal court’s conclusions merman’s limbs were restrained with de novo and the district court’s factual handcuffs, chains, locks, and that her determinations for clear error. Certain body was weighed down cement Interested Lloyd’s, Underwriters at Lon 4 1040-41, (Trial blocks. J.A. at 1043 Tr. (6th don Layne, Cir.1994) 26 F.3d 41 999-1000, 1002). at Further, her mouth (“In reviewing the district court’s determi eyes were covered with duct tape nation concerning jurisdiction, its we re wrapped around her head. J.A. at 1010 view the findings court’s of fact for clear (Trial (Trial Tr. 957:10-18); at Tr. at error and novo.”); conclusions of law de (Trial 1003:14-46); 1060-61 Tr. at 1019:22- see also Scripps E.W. Co. & Subsidiaries 1020:8). While investigating crime, po- v. United 420 F.3d lice recovered duct tape on the road ap- Cir.2005); Wo olum, Thomas v. 337 F.3d proaching lake, (Trial at J.A. (6th Cir.2003). doWe not have 988:21-23). Tr. at occasion to resolve the issue of which stan dard apply today, because under either The coroner testified that drowning was standard we would need to affirm jury the most likely death, cause of 4 J.A. at or the district Test, court’s factual conclusions (Cohle 1228-47 7-35), at and that supporting jurisdiction. body Timmerman’s likely been in the water for

Were we to three four weeks apply standard, before was Jackson Test, discovered, (Cohle we would look at trial J.A. evidence. at 16:14-15). trial evidence explained demonstrated that He Timmer- that drowning is body man’s a diagnosis was found in Lake, Oxford exclusion required him approximately seventy-five reject death, one-hundred other causes of at J.A. Test, shore, feet from (“J.A.”) (Cohle 4 Joint Appendix 13:11-24), and that he (Trial at 1004 951:13-16), Tr. at ap- examined Timmerman’s neck and face and proximately 227 feet from the boundary found no evidence of asphyxiation, 4 J.A. Gomez, 13. In the Ninth Circuit declined to reasonable doubt trial. 87 F.3d at 1097 n. resolve the issue of which standard of (upholding review jurisdictional the existence of a apply, should despite concluding that element even under a standard of de novo prosecution prove beyond must the element questions law). review for government. Test, by the federal 22-25). lake owned Howev- at (Cohle at 1240-48 testimony that the The uncontroverted cross-examination, testified also he er, on her north where of weeds thick bed asphy- was that out she rule “can’t he that extremely un- it renders found body was time other at some example, xiated, for drifted body likely Timmerman’s that at 4 J.A. the lake.” into dumped then feet, privately from southward Test, 85:15-17). (Cohle at it where the location to waters controlled trial at testified witnesses Finally, three con- jury could Accordingly, found. was separately of them told each Gabrion that place within took the murder clude that by a woman killed he had that either For jurisdiction. government’s if were he or that in a lake drowning her presented reasons, the these that do so in someone, would he kill to jury for a reasonable evidence sufficient of Gabrion acquaintance oldAn manner. that a reasonable doubt beyond conclude Westcomb, testified childhood, Lloyd on federal Timmerman murdered Gabrion “had that Gabrion told him Gabrion that territorial the within that lies property permanently his girlfriend rid of gotten Thus, States. down, her threw her bound that he ... suffieiency-of- reject Gabrion’s we would something like lake, in a the boat Jackson the argument the-evidence (Trial 8- at 1355: Tr. at 4 J.A. that.” standard. acquaintance 11). long-time Another court’s district the to review we Were Ga- Wismar, that testified Gabrion, Floyd clear error we determinations factual close “something real him: told once brion district the uphold also need would rid of get it’s not hard that effect subject-mat- had that it conclusion court’s weight ‘em down just you somebody; prosecution over Gabrion’s ter (Trial at J.A. a lake.” ‘em in throw its In June pursuant Mi- 4-6). nephew, Gabrion’s at 14: Tr. to dis- motion Gabrion’s ruling on opinion that Gabrion Gabrion, testified Jr. chael subject-matter lack of miss for if he that five occasions four said “[t]he court addressed tion, district the by so do he would someone killed ever ... theory of government’s wire in chicken person wrapping it that because its assertion upon based bricks, person chains, weighting one-third the southern bed of owns 4 J.A. in a lake. person throwing Lake, has Oxford 5-19). (Trial 42: Tr. at at 1337 portion in that committed crimes Op. was suf- at (6/11/01 trial Ct. at Dist. presented at 208 evidence J.A. The lake.” that to conclude jury concluded 8). court a reasonable district ficient that question that Timmer- no “[bjecause doubt there a reasonable beyond Although bed owns Lake. in Oxford drowned man Lake, it also of Oxford was unable he one-third southern said coroner occurring over crimes the cause asphyxiation out” “rule the bed.” immediately above testimony space detailed death, also offered he 11). atOp. (6/11/01 Ct. Dist. was J.A. thought asphyxiation he why as to judge district opinion, jury the same this, In a reasonable From unlikely. finding make he would doubt stated a reasonable beyond conclude could mur- alleged the location of jury regarding also drowned. Timmerman an element was der because a reasonable beyond have concluded could J.A. jury. to be resolved offense drowned Timmerman doubt 12). Follow- Op. at (6/11/01 Dist. Ct. ie., portion parcel, Lake Oxford trial, however, ing in August opin- its murder occurred on property owned remand, ion on the district court did make you are instructed that findings of fact related to such property is special within the mari- addressing addition to questions the of law time and territorial jurisdiction, regarding the district court United States.” argues Gabrion that the analyzed presented the evidence at trial jury instruction fundamentally miscon- under a preponderance of the evidence strued the law because did allow standard and “that determined the United the possibility that Gabrion murdered Tim- States had prosecute crimes merman parcel on a of federal land in the occurring on the Oxford Lake parcel of Forest, Manistee National which the feder- the Manistee Gabrion, National Forest.” al acquired after 1940 and for 2473978, 2006 WL at *10. This statement which it jurisdiction. did not accept makes obvious the district court con- cluded as a factual matter that Gabrion Although we correct “defects subject- killed Timmerman drowning her matter ... regardless parcel. Oxford Lake The district court whether the error was raised district reached this factual determination ac- court,” Cotton, United States v. 535 U.S. with jury’s cord conviction of Gabrion 625, 630, 122 1781, S.Ct. 152 L.Ed.2d 860 for killing Timmerman within the territori- (2002), jury-instruction issue does not al of the United States. I itself a raise in subject-matter defect think the trial evidence that I reviewed diction but rather raises question requires above us to conclude that the whether jury properly found the factu- district court’s factual determination that al foundation necessary to establish federal Gabrion drowned Timmerman in the Therefore, because southern third of Oxford Lake did not Gabrion’s counsel object did not to the jury amount to clear error. Accordingly, Ga- trial, instructions at we review the instruc- brion’s sufficiency-of-the-evidence argu- tions plain error. United ment fails. Donathan, 537, 65 F.3d Cir.1995); 52(b). test, “Under that be- Fed.R.CRIm.P. V. DID THE DISTRICT COURT ERR an appellate fore court can correct an er- BY INSTRUCTING THE JURY ror not trial, raised at (1) THAT there must be GABRION MURDERED (2) ‘error,’ (3) ‘plain,’ TIMMERMAN WITHIN ‘af- THE SPE- ” fect[s] CIAL substantial rights.’ MARITIME AND TERRITO- Johnson v. RIAL JURISDICTION 461, 520 U.S. 466-67, OF THE UNITED IF HE S.Ct. STATES MUR- 137 L.Ed.2d 718 (quot- DERED HER ON ing PROPERTY Olano, United States v. 507 U.S. OWNED BY THE UNITED 113 S.Ct. 123 L.Ed.2d 508 STATES? (1993)). When these three conditions are satisfied, may we Gabrion exercise our argues that discretion to district court “correct gave plain a jury an forfeited error affecting erroneous instruction re- garding jurisdiction substantial rights if in violation ‘seriously of his error right fair trial fairness, under affect[s] the Fifth integrity and Sixth or public ” reputation Amendments. The judicial district court instruct- proceedings.’ Ola- ed jury no, that: “If you beyond 736,113 find S.Ct. 1770(quoting reasonable doubt that the Atkinson, has United States v.

proven that the location of the alleged (1936)). 80 L.Ed. 555 sub- materiality to be the issue quiring con- instruction jury court’s district judge’s resolu- jury made mitted part first error an stituted Oliver, error); plain the issue tion of supra, explained because, I have test Supreme that the (explaining at 379 F.3d land ownership clear made in Booker Court’s decision ju- federal criminal synonymous in district court sentence defendant’s jury in- court’s district risdiction. By rights). Amendment his Sixth violated possibility ignored struction case, no interven- contrast, in the instant mur- that Gabrion might conclude jury Sixth Circuit deci- Supreme Court ing within parcel aon Timmerman dered jury error plain has made sion federal that the Forest Manistee relationship description of the instruction’s it did over which but owned fed- of land and ownership federal between jurisdiction. criminal not have only deci- The jurisdiction. criminal eral error was court’s district the Whether judg- is our error clear that to make sion of the test part the second “plain” today. ment compli- a more involves in Olano forth set this issue to resolve need do not We one that “A error’ ‘plain inquiry. cated if we were however, even because today, v. Oli- States clear or obvious.” consti jury instructions the conclude Cir.2005) (citing (6th 369, 379 ver, 397 F.3d not affect error, error did the plain tuted 1770). 734, 113 Olano, at S.Ct. U.S. most “In rights. substantial Gabrion’s howev- plain, error the consider For us defendant’s affect a an error to cases [for obvious need to be er, does error must have error rights] the substantial rather can but the trial time of at the Webb, prejudicial.” United been An Id. appeal. pending obvious become Cir.2005) (quoting 373, 382 F.3d at law the “where may plain be error 1770), Olano, at 507 U.S. clearly con- settled trial was time (2006). theAll denied, 546 U.S. cert. appeal.” time of at the law to the trary prosecu related at trial evidence 468, 117 S.Ct. Johnson, at Tim- drowned theory that Gabrion tion’s in Johnson decision Court’s Supreme of Oxford portion in the southern merman stand thus in Oliver decision and our Lake law re- although proposition addition In criminal § 480 and garding loca regarding evidence physical relationship be- specifically, § 255— body Timmerman’s and condition govern- timing tween testimony of discovered, the it was when land and parcel of a acquisition ment’s testimony of West- coroner, and the jurisdiction may — Jr., Gabrion, Wismar, comb, and Michael trial, the time at the clear have been at Gabrion placed also evidence additional constituted have may still instruction jury Ron Hall and Pearl Lake. or near Oxford error. plain driving they were that when testified Hall prepara in in an however, Lake June case, to Oxford differs instant season, they en turtle-trapping his- tion for procedural respect important very fast driven truck pick-up those countered and Oliver. of Johnson tories sticking direction, boat with a in the other deci- Supreme Court intervening cases, (Trial at 1252-59 of it. J.A. back the time out law between changed sions 1306-32). Hall testified Pearl Tr. at appeals. the defendants’ and that trial at J.A. the truck. driving was Gabrion 117 S.Ct. Johnson, at 16-19). Hall Ron (Trial at 1320: Tr. re- intervening decision an (explaining testified that he subsequently got when out the southern portion of Oxford Lake own lake, his vehicle to look he owned government. saw “marks where had drug someone [sic]

one [boat] out there.” J.A. at 1261 VI. CONCLUSION (Trial 6). Tr. at Kathy 1333: Kirk testi fied that when she visited For Oxford Lake explained above, reasons con- I her mother they June saw at cur in judgment affirming the district the lake a pick-up truck with a boat in the court’s holding that govern- back with two men one woman in it. ment has prosecute Gabrion (Trial J.A. at 1574-79). 1396-1401 Tr. at pursuant to 18 U.S.C. 1111 the federal Kirk testified that Gabrion was one of the courts. I think that the relevant prece- (Trial men truck day, J.A. dent and facts make clear that 16 U.S.C. 3-14), Tr. at 1579: and that she recognized preclude does not concurrent federal the woman later when she saw her pic state criminal over nation- tures news as the woman drowned al forest lands. Furthermore, because the (Timmerman). Oxford Lake J.A. at federal government purchased the Oxford (Trial 1-11). Tr. at 1582: Lake parcel prior to 1940 there exists a

I therefore agree with the government presumption that the government federal that the theory of prosecution accepted the legislative jurisdiction and the the government’s evidence permissible parcel, made it and Gabrion has not presented per- for the district court to jury instruct the suasive evidence rebutting this presump- that if Gabrion murdered Timmerman on Thus, tion. the southern third of Oxford federally owned property, then he did so Lake where jury concluded that Ga- within the special maritime and territorial brion murdered Timmerman lies within jurisdiction of the United States. An in- the special maritime and territorial struction that referenced parcels other of diction United States as by defined federally owned land within the Manistee 7(3). 18 U.S.C. patchwork The charac- National jurisdictional Forest and the con- ter of the federal criminal sequences of that land would perhaps have the Manistee National Forest does not vio- confused jury. argues Gabrion late Fifth or Eighth Amendments. the prosecution presented also evidence government The presented sufficient evi- regarding the two-track roads that lead to dence jury reasonable to conclude Lake, Oxford which parcels cross of land beyond a reasonable doubt that Gabrion over which the government federal does murdered by Timmerman drowning her have See J.A. at portion of Oxford Lake owned 1022-25, 1029, 1088, 1105, (Trial 1252-53 government. Finally, the district Tr. 22-23, at 962: 981-84, 22-23, 988: court’s jury instructions to the did 2-7, 1057: 17-23, 1306-1307). 1099: But plain constitute error affecting Gabrion’s no presented evidence by either prose- rights. substantial Therefore, the federal cution or the suggested defense that Ga- government prosecute brion might have murdered Timmerman Gabrion for pursuant murder to 18 U.S.C. on one of these other parcels of land. § 1111. Based on the presented trial, evidence if the jury found that Gabrion murdered MERRITT, Circuit Judge, dissenting. Timmerman on federal property, it must have necessarily also found that Gabrion Although it may seem glance at first murdered Timmerman by drowning her in somewhat counterintuitive to say that the statutory and constitutional pertinent ple- or general not have do courts provisions. mur- subject matter nary for- in the national crimes other

der and 16, Specifically 480, Title I. Section is That fact, situation. is, ests, that Federal Jurisdiction Regulates of feder- system our because the situation Forests Over by clear Congress act requires alism jurisdiction defense subject-matter such to create legislation positive is based Gabrion defendant by the raised done so. has not Congress jurisdiction, Act Administration “Organic criminal, common-law, federal is no There Act” the “Weeks 1897,”2 combined for- in national subject-matter as together codified are now concept elsewhere, and ests § 480: checks and system our part been and crimi- civil both jurisdiction, limiting power balances within national nal, persons for- beginning.1 changed ests, not be shall affected legisla- by positive Congress has existence, except so Instead their reason far affirmative- sought against in 16 punishment of offenses quo concerned; status jurisdictional to maintain therein ly ac- provision meaning of this when the ante intent lands. na- forest wherein creates the State being quires not, by and statu- shall situated constitutional the several tional Once thereof, lose legis- the establishment to federal pertaining reason tory provisions the inhabitants nor jurisdiction, nation- its judicial and lative as privileges and understood, rights it their thereof and parsed are al forests their duties citizens, absolved beor colleagues’ my that clear become should the State. of citizens as close not bear will problem to the solution that, my added.) sen- col- only but The underlined Not (Emphasis analysis. is subject criminal voice. passive general is in the claim of tence leagues’ by modified posi- contrary “jurisdiction” to directly the noun is This refers the Lands and criminal.” adjectives “civil and Forest Service that the civil adjudicate authority to judicial of Justice Department of Division “to are The verbs cases. explain criminal I will and ago, as years adopted many affect,” and the sentence “to change” or led I have opinion, once of this end at the “jurisdiction” that stating negative of analysis a reasoned through the reader be should not the acts Goodwin, It was declared Hudson & v. States 34, United. 1. See in- egress and ("The prohibit "construed L.Ed. Cranch residing therein must first actual settlers” authority gress the Union legislative it, en- crime, any person from punishment to prohibit affix "to an act not [and] make jurisdic- proper and shall have Court for all declare the reservation tering and offense.”). prospect- including tion of purposes, lawful developing mineral locating and ing, and pur- has described Court Supreme 2. The com- resources; persons such provided that follows: pose of this Act covering regulations and rules ply with the relating the es- acts various From the (Act c. forest reservation.” res- management of and tablishment 36). 30 Stat. they intended were appears that ervations Grimaud, forest and protect the improve and "to (1911). L.Ed. flows.” water favorable conditions secure is “not” “changed” or “affected.” The al “concurrent” criminal subject matter prepositional phase “within the national national forests. They derive such broad verbs, forests” modifies the and the mean- criminal directly from ing is that the “existence” or creation of § 480. That statute is the basic source of “national will forests” change their argument jurisdiction. favor of diction of courts, ie., state or federal that Using § 480 they would read the “special quo status existing before creation maritime and territorial of the national forest concerning United States” to include all such forest tion will continue after their creation. The lands. “except” clause limits the duration of that Section 480 applies specifically only pre-existing state of affairs and makes its forests,” “national any not to gov- other dependent continuation on whether Con- ernment lands. It flatly states un- gress acts to create any and define equivocally that no change in the status “offenses ... therein.” The conditional quo respecting ante federal and state crim- “except” requires clause Congress to act inal shall occur virtue affirmatively legislate criminal offenses acquisition or designation of lands as a “therein.” legislation Unlike with respect “national forest.” It specifies to military expressly bases and other federal en- that “civil and claves, jurisdiction” Congress in na- has not acted affirmative- forests, tional ly than general under the other Commerce, Interstate feder- Feder- al al “offenses” applicable in Enclave or Property the country at Clauses of the large, is not Constitution to bring “affected” murder in the “na- does not “change” tional forests” within when lands “special part become maritime national territorial forests. of the United States” or any other category federal, only way my colleagues can arrive judicial, subject-matter at their conclusion is holding only order for federal offenses within the na- jurisdiction” “state does not change when a exist, tional forests to the offense must be created, forest is but a regular general federal crime of nation- what the says. section Section 480 does application wide or a crime specially de- not say only jurisdiction” “state shall fined and by Congress enacted within one not change. It says jurisdiction, “the both or more national forests. The crime of civil and criminal” shall not change as a murder is not such a crime. Congress has result of federal acquisition of forest land. not made the crime of murder gen- either This language includes both state and fed- erally applicable nationwide or specially jurisdiction eral forests, and that in- applicable in one or more national forests. terpretation has become by well-settled There is no federal crime of murder appli- practices administrative of the Forest cable outside the “special maritime and Service and Department of Justice territorial jurisdiction,” and Congress has past 100 years, explained as later. not acted to bring the national forests within that “special jurisdiction” category. jurisdiction Federal § 480 exists

Rejecting this only common interpreta- sense for “offenses” of general nationwide tion based on our tradition, federalist or special local application which are main thrust of separate opinions of criminalized a specific federal statute. both Judge Batchelder and Judge Moore In words, is other the language §in § 480 on national forests itself some- “except so far as punishment of of- how provides the necessary plenary, feder- fenses against the United States therein § behind policy apparent that offenses concerned,” means up make such forests the national crime where regardless are federal States that United of the percentage large are within is committed effectively en- impossible be it would in forests —for national offenses federal without es- therein laws all criminal force robbery, coun- like bank crimes example, police force. large national tablishing mur- drugs, illegal the sale terfeiting, acres or million comprise 193 lands These officers, law enforcement der of of the United land area total 8.5% mur- to commit facilities interstate use of across extend forests National States. general, hire, crimes other and der for Hawaii, and California nation from ie., regular feder- application, nationwide Maine, and Puerto Rico. Florida Alaska to addition, would “offenses” In al crimes. occupies itself Forest Manistee and described specifically crimes include and Michigan in Western counties several application local Congress for enacted farms, and home lakes private includes The fed- forests. or more in one prac- administrative The consistent sites. case, § this in issue statute at eral Depart- and the Service tice of Forest clause “except” fall within cannot Justice, Section as described ment 1111(b) that the requires § because policy this support this opinion, III of mari- special “the within occur murder rath- jurisdiction criminal on state relying and territorial addition, time than er requires turn States,” with the obviously be inconsistent it would or “exclusive plenary act to create Congress of federalism tradition long has Congress govern- for the jurisdiction.” criminal concurrent state (with- either responsibility or elsewhere to take ment not asserted statute) law en- a clear exclusive out concurrent noncontiguous, large, such no territorial forcement cases; consequently, such throughout 7(3).3 lands groups scattered §by defined exists gov- committed degree murder cases first criminal 480 federal colleagues assert My which the property over penalty ernment federal death jurisdiction over "exclusive created the so-called forest under in the national case 7(3) by § tion,” required territorial "special maritime 1111(b) limits to in 18 Section above. referred United States” 7(c) as fol- subject Section matter 7(3) § 1111. "special maritime and limits lows: defines by the and territo- (b) special lands owned maritime jurisdiction” to Within territorial States, whoev- Congress has created United jurisdiction of the which government over rial degree first jurisdiction”: guilty or concurrent of murder is "exclusive er by imprison- by death or punished shall be and terri- "special maritime § 7. The term ment life.... States,” as the United jurisdiction of torial added.) criminal create federal To (Emphasis "(1) title, [Waters includes in this used dependent on totally § jurisdiction, 1111 is jurisdic- admiralty and maritime within creating law 7(3), requires a federal § which (2) a [Vessels on States]. United jurisdiction” concurrent “exclusive or the Great to voyage on waters connected be feder- There cannot "required” lands. acquired or reserved Any lands Lakes]. un- forests in jurisdiction criminal States, al and under use of United for the by positive Congress acts unless §1111 der jurisdiction or concurrent exclusive Section 480 jurisdiction. such to assert law thereof....” "no saying that opposite exact does rely added.) colleagues My (Emphasis the cre- the result occur as change” shall 1111(b) which limits § of Title forest. of a national ation penalty to death impose the jurisdiction to cities, areas which vil- jurisdiction law enforcement over “lands or residences, lages, farms and private other an interest in land it acquires” may only be interspersed lands are with public forest accepted by the federal government by the lands, trails, logging recreation facilities filing of formal notice that the government and lakes. in fact accepts jurisdiction.5 provides statute procedure

Another section of for a federal, the same by which na- statute, tional provides forest exclusive or jurisdiction limited concurrent exception may misdemeanor be acquired. the “no-change- statute, 40 U.S.C. in-jurisdiction” (now § § rule of by delegating codified as 40 3112), § to the Secretary Agriculture authority reads as follows: to “make such regulations rules and ... § Federal regulate occupancy their and use and to (a) Exclusive not required. preserve the forests from thereon destruc- required It that the Federal Gov- tion.” 16 U.S.C. 551. The statute au- ernment obtain exclusive punishment thorizes a for violations of the United States over land or an inter- such regulations of “not more than or $500 acquires. est land it imprisonment for not more than six (b) months” with Acquisition the case to be and acceptance “tried by any sentenced magistrate diction. When the head of a depart- ” judge .... Id. This provides ment, statute an agency, independent or estab- exception to the “no change” rule of lishment Government, or other 480,4 but there is no similar federal stat- authorized officer of the department, ute creating any type of federal felony agency, or independent establishment, jurisdiction over national forest laws. desirable, considers it individual may accept secure,

Section 480 itself creates a State specific na- tional in which exception land or an a more interest general, land statutory rule regarding acceptance under the ex- immediate tion, clusive concurrent custody, over gov- or control of the individ- ernment lands. The general more situated, ual is statuto- to, consent or cession ry rule was first of, established any statute over the or in- land provides 1940. It that concurrent federal terest not previously obtained. The 4. The National Forest Service has quite exercised system different legislative delegation of authority granted by depends on contracts with statute. See 36 C.F.R. 261—"Prohibitions” governments approved state by congression- (prohibiting interfering with Forest Service al committee. ("The See la-3. officers, conduct, disorderly cutting timber Secretary diligently shall pursue the consum- and similar behavior in national forests arrangements mation of with each State ... regulating vehicles, the use of fishing motor end practicable insofar as etc.) hunting, regulation No issued United States shall legis- exercise concurrent purports Forest accept Service concur- lative within units of the National rent the Assimilative System”). Park Crimes Act or subject create federal matter jurisdiction to enforce state criminal laws in 1923, 5. In Michigan State of by statute federal regulations court. The follow rule granted to the United ju- States "concurrent §of provides 480 that change for no in civil risdiction ... in and over acquired” lands so jurisdiction and criminal by virtue of the "ex- for national forests. § 3.401 Comp. Mich. Laws istence” national forests. (2007). All concede that the federal govern- The National Park Service within the De- accepted ment has jurisdiction never by such partment of operates the Interior a under or notice other action.

881 ... (federal “jurisdiction jurisdiction of of acceptance indicate shall individual not affected be forest shall national of the Govern- within on behalf jurisdiction rebut- pre-1940, neither acceptance changed”), notice of a filing by ment jurisdic- concurrent “presumption” State table of the the Governor with presump- laws conclusive by the post-1940 nor the tion prescribed manner another has jurisdiction is situat- the land concurrent against tion where State forests. govern- national applied the federal official of ever been [No ed. argument notice colleagues’ a Notwithstanding my such filed has ever ment con- asserting 480 Michigan that section it is clear contrary, State to the is an forests jurisdiction.] covering national specifically current is pre- § conclusively § [now 3112] 255 (c) exception It Presumption. not been lands but not has other jurisdiction applicable sumed accepts could §if 255 Government Even forests. until national accepted provided national as applicable over land be held jurisdiction somehow concur- forests, not create it could section. a con- it creates because mod- rent added.) statute 1940 (Emphasis jurisdic- against such presumption clusive rule judicially-created previous, a ified service the forest because would tion and courts circumstances in some as jurisdiction, such consistently denied government “presume” below. in Section III discussed be concurrent will accepted had charge agency government if the a state Opinions are Colleagues’ My II. refuse expressly did not land Meaning of about Mistaken the state. offered accept 7(3) 1111, and §§ States, 319 U.S. v. United Adams See (1943) L.Ed. 315, 63 S.Ct. argu- analysis and opposition In § 3112] [now under (setting aside above, Batchelder Judges ments outlined at a soldiers of three convictions rape principal randomly seven cite and Moore government because military base provisions constitutional two cases and juris- or concurrent exclusive accepted Enclave” “Federal (the and “Property” be can “concurrent and diction discussed statutes Clauses), as two as well acceptance formal by the only acquired and (18 above Act”); Leavenworth Fort prescribed 3112]). each I will discuss § 255 [now Lowe, v. R.R. Co. and the make they arguments one (acceptance 29 L.Ed. rely on. they authorities principal be may sometimes concurrent on United reliance citation does if the federal “presumed” (9th F.2d California, v. States cession to a state’s object Cir.1980), proposition for the acceptance); forecloses no statute concurrent automatically have courts Johnson, F.2d forests national states over diction with Cir.1970) burgla- (affirming 1114-15 confusion their indicates misplaced Administration in a Veterans ry conviction that case meaning of about pur- naval acquired on land hospital the State sued the federal ground in 1918 poses actors State because plaintiff California “presumed” would be in a a fire started negligently objection an absence clearly courts Although the federal forest. expressly Because government). actions of such have presumption preempts forbids § 1345 (providing “original ju- the national Congress forests must act to actions, risdiction all civil pro- suits or Instead, do so. §in Congress has ceedings by commenced the United expressed the opposite intent. Neither States”), court dismissed action § 7(3), §nor mentions or purports to government because the bring failed to its jurisdiction create forests, national negligence action within appropriate § 480 expresses a clear intent to leave statute of limitations. In passing, place quo status excluding such court mentioned states, federal jurisdiction criminal and leaving it the federal government, gener- which have up states to cases, deal with such al jurisdiction “criminal civil na- has been the practice consistent since the tional § forests” under The Ninth national forests were established more Circuit in its dicta is simply saying I —as years than 100 ago. would hold here in respect to criminal My colleagues appear also to suggest if cases—that there is a federal statute of that the Constitution may itself directly— general nationwide application that gives in a self-executing give manner —somehow federal jurisdiction courts civil over tort jurisdiction courts over mur- cases in a forest, national § as does ders national forests. They seem to when the federal plain- believe that the Federal Clause, Enclave tiff, then federal jurisdic- civil concurrent I, Article Section itself, Clause 17 with- tion exists along with state court concur- out further federal legislation, creates fed- rent But if is no there federal eral criminal over murder statute like 1345 on the civil side or a cases in the Manistee Forest. general, federal, criminal statute like one just This Clause gives Congress power forbidding robbery bank drug distribu- to create' federal criminal §or above discussed on the crimi- “purchased lands ... for the erection of side, nal then there is no forts, magazines, arsenals, yards, dock tion. That is what 480 means when it other needful building.” Congress must says no federal civil or criminal exercise power by legislation. The exists “except so far as punishment clause is not self-executing. It requires an offenses against the United States.” The act of Congress. §In 480 Congress has Ninth interpretation Circuit’s §of explicitly acted to decline general such ju- the California case is the same as my risdiction “within forests,” national stating analysis and contrary my colleagues’ clearly that “civil and criminal jurisdiction interpretation. ... shall not be affected or changed” by Likewise, my colleagues are mistaken virtue of acquisition of national forest they when say that 1111(b) lands. case, this does provides over murder not and would have no basis to claim that cases 1111(b) forests. Section it has acquired under this only criminalizes murder within “spe- Clause of the Constitution, and no case cial maritime and jurisdiction” territorial authority exists for the exercise of such 7(3), covered not within the national criminal under 7(3) forests. Section in turn defines this Clause. “special” jurisdiction as federal lands statute have Likewise, been placed (“Con- Property Clause the “exclusive or jurisdiction” gress shall power have dispose of and government. My colleagues make all needful rules regulations re- fail to understand that in order to create specting ... property belonging to the murder or other States,” IV, Article Section referring only is § 480 that believe to to self Congress act of 2) an requires Clause fed- to “the not jurisdiction,” “legislative to criminal federal general create jurisdiction.” matter subject eral court’s in the national cases ordinary murder over juris- ... “only legislative that states She self-executing. is clause This forests. or determi- actually at issue ... is diction to by statute positively act must Congress com- a indicates This this case.” native in jurisdiction. create issue before misunderstanding plete 529, 96 Mexico, 426 U.S. v. New Kleppe “leg- has Congress that one denies us. No (1976), is L.Ed.2d S.Ct. for- national jurisdiction” over islative in arguing judges by both upon relied case Commerce, Property The Interstate ests. Enclave Federal and Property that provide each Clauses Federal Enclave and felony ju- criminal federal create Clauses na- over legislative jurisdiction for some Kleppe, forests. in national risdiction is only question wheth- The tional forests. con- upheld simply Court Supreme “federal to create has acted Congress er Free-roaming stitutionality of Wild a jurisdiction” matter subject court’s 1971, insofar Act of Burros and Horses It is forests. the national in case murder in board livestock the state prohibited itas are colleagues mistak- my that no wonder lands public entering from Mexico New when question in answer en their bur- wild removing and States one issue is that they think The laws. estray the State’s ros jurisdiction.” “legislative existence En- and Property that recognizes case is there right quite both They are self-executing are Clauses clave wrong quite but jurisdiction” “legislative reg- in order legislation specific require subject matter court is “federal there federal create ulate jurisdiction.” heavily on rely judges Both lands. public in are mistaken Likewise, colleagues my di- argues for Judge Batchelder Kleppe. federal for support finding subject matter federal rect in United forests national murders statement Court’s from the diction (4th Cir. F.3d 611 Raffield, may federal Kleppe in a Circuit 1996). the Fourth There a power legislative “apply derivative “the state holding stated doubtful ... Clause] the [Enclave pursuant state into enter[ed] ... governments land, or acquisition consensual be jurisdiction” of concurrent relationship legis- cession subsequent the state’s ... specifi Act Crimes “the Assimilative cause land.” authority over lative ‘operat convictions contemplates cally opinion Kleppe influence vehicle under ing a motor referring Court clear lands. alcohol’ while drug ex- must be which jurisdiction” “legislative 13(b)(1).” at 613. Id. into turned it is by statute before ercised driving of drunk treatment question judicial criminal, subject-matter, federal, us in is not before lands forest in national con- colleagues appear My The, Crimes Assimilative case. the instant authority, jurisdiction” “legislative fuse mis authorizing provisions Act has federal, authority, with i.e., constitutional in traffic regulating demeanor which jurisdiction, subject-matter judicial, Act fractions, Weeks action by positive only be created may viola driving provision a misdemeanor Congress. au Act Neither forests. tions over felonies. absolutely clear thorizes becomes This confusion un issued regulations The national opinion Batchelder’s Judge 5 of footnote in a national driving drunk make der her- persuaded somehow she has

forest a federal misdemeanor. Section “presuming” implying or general federal 13(b) of the Assimilative Crimes Act over state felonies in national states: forests based on the drunk driv- Raffield (1) Subject ing if, to paragraph fact, in my and for this is colleagues’ case— purposes (a) purpose of in citing subsection of this sec- case. tion, that may which or shall be imposed Neither does the of case Stupalo-Thrall through judicial or administrative action (6th 70 F.3d 881 Cir. State, the law aof territory, pos- 1995), have anything whatever to do with session, district, or a conviction the question in First, this case. in Stupak operating a motor vehicle under the in- the en banc court issued no authoritative alcohol, a drug or shall be

fluence of ruling because it split four, four to considered to a punishment be provided in resulted an affirmance of the District Any that law. limitation on right Second, Court. question in the case or privilege operate a motor vehicle had do governmental with the regula- imposed under this subsection ap- shall riparian rights littoral private ply only to the special maritime and property Sylvania owners Wilder- territorial of the United ness Area under the Michigan Wilderness States. Act, Public Law 100-184, No. 101 Stat. (2)(a) In to any addition term impris- (1987), and the Act Wilderness provided onment for operating a motor 1132(b). § Congress vehicle under the influence of a drug or clearly and specifically by positive acted alcohol imposed under the law of a law to create limited jurisdiction. State, possession, territory, district, In the Michigan Act, Wilderness Congress the punishment for an offense un- clearly authorized the Department der this section shall include an addition- Agriculture to engage in the regulation of al term of imprisonment of not more water craft pollution Sylvania than 1 year, or if bodily injury serious of Wilderness Third, Area. § 480 and the caused, minor is not more than question subject matter years, or if death of a caused, minor is national forests were never mentioned in years.... more than 10 the case and would have been completely irrelevant any added.) possible (Emphasis presented issue The case Raffield there. based its drunk driving on this specific language, a doubtful holding unless Equally strange is the reliance on Han- the Court intended rely § on 551 which Delo, kins v. (8th Cir.1992). F.2d 396 relates specifically to national forests. In that case Eighth Circuit held that it case criminalizing drunk driv- was the Raffield state government juris- that had ing in a national forest is not point. diction over murder in the national forests There is no 13(b) language §in §or 551 in opposition to the petitioner’s habeas ar- that would any way rejec- alter 480’s gument in a capital murder habeas case tion of concurrent in the na- from the State of Missouri that the state tional forest for murder or other state court lacked over a murder My felonies.6 colleagues, therefore, err in committed in the Mark Twain National decision, In a recent the Tenth Circuit held LEXIS 4018 2008). Cir. Feb. that federal did exist for a murder Tenth Circuit’s treatment 480 mirrors committed in a national despite my colleagues and similarly misunder objections defendant's precludes stands that the Weeks specifically pre Act such an exercise of See United served quo the status ante Congres absent Fields, States v. 516 F.3d U.S.App. sional action. adminis- executive legislative, lowing my col- opposition In direct Forest. stating that opinions agency trative said Circuit claim, Eighth leagues’ ei- the exercise prohibits negates land to cede purports state when “even exclusive or ther the United government, in na- committed state crimes over diction it unless jurisdiction not have does States tional forests. 398, a conclusion it,” 977 F.2d accepts only the state holding that to equivalent Shields, Solici- H. Robert Opinion of 1. in the cases murder over jurisdiction of Department General, U.S. tor conclusion same Forest —the Twain Mark July 18, Opinion Agriculture, here. I reach (filed Exhibit as Defendant’s Tax Co. v. Mason of Silas cases The B): 233, 186, 58 S.Ct. Commission, therefore, opinion, “It our Benson (1937), and L.Ed. of concur- the exercise precluded supra, L.Ed. 325, 13 S.Ct. States, 146 U.S. juris- exclusive as as well jurisdiction rent bearing on no (1892), also have national by the diction involve not even They do case. ” lands.... deal to purport forests in national to national relevant any law § 480 or with Attorney Her- General Opinion of 2. forests. Ei- Jr., Brownell, to President bert 27,1956, of “Juris- senhower, April Re: expansion colleagues’ my Finally, Within Areas Federal Over federal, subject-matter diction “concurrent,” (filed as Defendant’s to include the States” forests diction D): all of Exhibit make laws would criminal state (the §in the states referred of laws report notes: General’s Attorney The Act) as federal apply Crimes Assimilative no has Federal Government “Where rang- laws State court: federal land, crimes over its jurisdiction legislative hunting land use zoning and ing from interest proprietorial ain land holds such occupa- auto, driver’s fishing as in the land rights has the same only and federal all create licensing would tional Defendant’s landowner.” any other does expan- of unheard jurisdiction judicial arsenals, military bases or courthouses Id. 114. has asserted concurrent or Opinion 4. Mone, of W. of Office exclusive Gen- before converting eral Counsel, Department U.S. them to national forest lands. May (Defen-

Agriculture, 29, 1963, H): dant’s Exhibit “The United States has neither concur- I believe that or language rent section exclusive over the na- 480 itself lands, tional clear that but holds such lands in a proprietary (Reference: capacity does not only. exist in murder cases in national Op. 2979, Sol. dated 18, forests, December 1940; including the Manistee National Op. Sol. July 18, 1942; dated and Op. Forest. Basically, the statute says that Sol. 27, 1943.) dated April The pro- such cases should be tried in state court prietary capacity means merely that because ordinary United States land, owns the insofar as “shall not be affected or changed.” But if legislative and law jurisdic- enforcement there were ambiguity doubt, well set- concerned, tion is in the same manner that tled principles of administrative law re- an individual owns land.... In no case quire that give we deference to administra- where lands, national forest acquired un- tive interpretations of statutes that der the Law, Weeks are involved have agency administers, for as Justice Stevens there been accepted by the wrote for the Court in Chevron U.S.A. v. United States.” Natural Res. Council, 467 U.S. Def. 5. Report (1984): Legislative L.Ed.2d “Federal Ju- risdiction” Public Land Law We have long recognized that consid- Review Commission, incorporating erable weight should be accorded to an Report opinion of the Land department’s executive construction of a and Natural Resources Division of statutory scheme it is entrusted to ad- Depart of Justice, Septem- minister, and the principle of deference ber, 1969. The Public Land Law to administrative interpretations Review Commission consisted of 18 members, appointed 6 each by the “has been consistently followed Senate, the House and the President this Court whenever decision as to

(filed as Defendant’s p. Exhibit meaning or reach of a statute has 77): involved reconciling conflicting poli- “The Weeks Forestry (16 cies, Act of 1911 and a full understanding of the § 480), a statute which authorizes force of the statutory policy in the upon depended has situation given America, STATES UNITED re- knowledge ordinary than

more Plaintiff-Appellee, subjected matters specting omitted].” [citations regulation agency ALEXANDER, Wayne Donald language Therefore, clear Defendant-Appellant. administrative consistent

itself, plus the last over the the statute interpretation No. 06-1867. toas for doubt no room years, leaves Appeals, Court case. in this the question Circuit. Sixth not heretofore The federal accepted asserted Feb. Argued: state-law- or other cases murder tion over 26, 2008. Feb. and Filed: Decided forests. the national felony cases type apply, still of federalism principles Normal state courts crimes

leaving such laws. state deal with language clear face of In the rejecting federal prin- forests, longstanding tion in the states relying on of federalism ciples the criminal enforcement general creating a against reasons law, policy force police service national forest large longstanding laws, and state enforce by federal of such rejection Court, the the District agencies, executive erred colleagues have my in “presuming” to con- meaning opposite § 480 a giving status to maintain intent gressional general regarding quo ante forests. in the national diction notes ownership conceded expert had noted: counsel Gabrion’s Lake of Oxford portion southern any presented never government event, 40 U.S.C. any hearing. when in 1938 proving evidence ac lands For in 1940. enacted was was created Forest Manistee 1940, federal prior quired particular when in 1939 then Johnson, v. presumed. portion southern surrounding the land (7th Cir.), de cert. 1112, 1114 F.2d 426 sold was Lake Oxford 86, 27 842, 91 S.Ct. nied, 400 U.S. gave government v. United (1970); Markham 78 L.Ed.2d acceptance itsof notice proper Cir.1954), cert. States, F.2d 56 v. United Adams diction. 360, S.Ct. denied, U.S. L.Ed. 312, 63 S.Ct. Inc. SRA (1955); see also L.Ed. (‘Since 7, 66 n. Minnesota, Clai- Camp [of accepted (1946). The required L.Ed. manner borne, Louisiana was Lake feder- Oxford 1940] portion of October southern Act rape For

Notes

notes report B, 21. The p. Exhibit —an cre- would jurisdiction of sion Department and 101 pages court all general almost ate holds Forest Service Agriculture in all laws state ownership. of all the enforcement “proprietorial” its lands forests. of the national million acres Attorney Gen- Opinion of Follow-Up Agency in Brownell, Presi- Administrative Jr. III. Herbert eral Has June, Forests Re: Eisenhower, Charge of the dent Con- Federal Federal Areas Consistently Opposed Over “Jurisdiction (filed Defen- as the States” Jurisdiction current Within 114): p.E Exhibit dant’s Department the U.S. past retained.— the national criminal operates “State Agriculture, into extends Jus- Department State forests, as as well Federal by occupied gov- owned areas agencies and other tice the Gov- Government, to which but pre- § 480 to interpreted ernment, have leg- exclusive acquired has ernment general clude respect islative in na- committed like murder crimes state by many areas owned as to crimes. And fol- record reflects forests. tional the Federal Government for its various acquisition of privately owned land for na- purposes it has not acquired legislative tional forest purposes, provided against jurisdiction. The forest service of the change reason Department Agriculture, for example, acquisition.” The report at page 75 lists in accordance with a provision of Feder- “only seven of the Forest Service’s 245 (16 al 480), law accepted properties [that] contain other pro- than proffered by the statutes prietorial jurisdiction,” none of which are of many states, and the vast majority in the Manistee National Forest. These federal forest lands are held the Fed- seven exceptions are because the federal eral in a proprietorial Government sta- government had previously acquired them tus only.”

Case Details

Case Name: United States v. Gabrion

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 14, 2008

Citation: 517 F.3d 839

Docket Number: 02-1386, 02-1461, 02-1570

Court Abbreviation: 6th Cir.