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United States v. Parker

United States District Court, W.D. North Carolina, Bryson City Division

August 1, 2014

UNITED STATES OF AMERICA,
v.
JEROME BROCK PARKER (1), JERRY FRANCIS PARKER (2). UNITED STATES OF AMERICA,
v.
DAVID CHADWICK CRISP (1), DAVID FRANK CRISP (2), ROBERT WILLIE BUMGARNER (5)

MEMORANDUM DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THESE MATTERS are before the Court on the above-named defendants' motions to dismiss the Indictments in their respective cases for lack of subject matter jurisdiction [CR-15 Docs. 77, 80; CR-16 Docs. 77, 78, 86, 99, 100, and 103].[1] Further, the defendants have filed motions to dismiss the Indictments due to constitutional due process violations [CR-15 92, 93; CR-16 Docs. 98, 102, 104], and four[2] defendants have moved the Court to dismiss the Indictments based on entrapment. [CR-15 Docs. 92, 93; CR-16 Docs. 98, 102]. Even though these cases were indicted independently, they originate from the same undercover investigation. More importantly, however, the legal analysis necessary to resolve the motions pending in both cases overlaps to such an extent that the Court finds it more efficient to set forth its reasoning in this comprehensive memorandum, filed in both cases.

PROCEDURAL BACKGROUND IN CR-15

Defendants Jerome Brock Parker ("Jerome Parker") and Jerry Francis Parker ("Jerry Parker"), together with Carl Wesley Junaluska II, [3] Walter Henry Stancil, [4] and Walter Cale Stancil, [5] were named in a two-count Indictment returned by the grand jury in this District on June 4, 2013. [CR-15 Doc. 1]. Jerome Parker, Jerry Parker, and the three other men were charged in Count One with a two-object conspiracy to violate wildlife laws and regulations in derogation of 18 U.S.C. § 371. The grand jury alleged that from October 24, 2011, to October 28, 2011, in two separate incidents, the defendants conspired to sell, acquire, receive, and transport American black bear, with a market value in excess of $350, by providing guiding services for money and other consideration, knowing the bear to have been taken, possessed, transported, and sold in violation of federal law, and of state law by assimilation. [Id. at 1-5]. Count Two alleged the defendants should be punished federally, pursuant to 16 U.S.C. § 3372(a)(1), [6] for illegally taking wildlife on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 5-6].

Defendants were arraigned on June 17, 2013, and entered pleas of not guilty to both counts. Following their arraignments, defendants were released under pretrial supervision upon stated conditions. [CR-15 Docs. 8; 10]. On December 4, 2013, in nearly identical motions and memoranda, the Parkers moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [CR-15 Docs. 77-81]. The Government responded by filing its Memorandum in Opposition together with exhibits. [CR-15 Docs. 82; 83]. The Court heard arguments from counsel for all parties on March 24, 2014, regarding defendants' dismissal motions. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant Jerry Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [CR-15 Doc. 92] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-15 Doc. 92-1]. On that same day, Defendant Jerome Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [CR-15 Doc. 93] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-15 Doc. 94]. The Government responded with separate memoranda filed April 3, 2014, and April 18, 2014. [CR-15 Docs. 95; 96]. The Court conducted a second hearing on the defendants' motions on May 29, 2014.

PROCEDURAL BACKGROUND IN CR-16

Defendants David Chadwick Crisp ("D.C. Crisp") and David Frank Crisp ("D.F. Crisp"), Robert Willie Bumgarner ("Bumgarner"), together with Tommy Gene Queen, [7] and Mitchell Allen Jenkins, [8] were named in various counts of an Indictment returned by the grand jury in this District on June 4, 2013. [CR-16 Doc. 1]. D.C. Crisp, D.F. Crisp, Bumgarner, and the other two men were charged in Count One with an 18 U.S.C. § 371 conspiracy to violate wildlife laws and regulations. The grand jury alleged that from November 17, 2010, to December 13, 2011, the five defendants conspired to sell, acquire, receive, and transport American black bear and white tail deer, with a market value in excess of $350, knowing said wildlife was taken, possessed, and transported in violation of federal law, and of state law by assimilation. [Id. at 1-2]. Count Two alleged a Lacey Act violation against D.C. Crisp, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on September 7, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 2-3]. Count Three alleged a Lacey Act violation against D.C. Crisp, Tommy Gene Queen, and Mitchell Allen Jenkins, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on October 20, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 3]. Count Four alleged a Lacey Act violation against D.C. Crisp, D.F. Crisp, Tommy Gene Queen, and Mitchell Allen Jenkins, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on October 26, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 4]. Count Five alleged a Lacey Act violation against all five defendants, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on November 9, 2011, on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 4-5]. Count Six alleged a Lacey Act violation against all five defendants, pursuant to 16 U.S.C. § 3372(a)(1), for illegally taking wildlife on November 9, 2011, (on an occasion separate from that charged in Count Five) on federal forest land in violation of North Carolina wildlife laws and regulations as assimilated pursuant to 18 U.S.C. § 13. [Id. at 5-6]. Counts Seven and Eight each alleged D.C. Crisp, on December 13, 2011, and October 8, 2012, respectively, possessed different firearms while being an unlawful user of and addicted to a controlled substance in violation of 18 U.S.C. § 922(g)(3). [Id. at 6].

Defendants were arraigned on June 17, 2013, and entered pleas of not guilty. Following their arraignments, defendants were released under pretrial supervision upon stated conditions. [CR-16 Docs. 8; 10; 17]. On December 4, 2013, in nearly identical motions and memoranda, the defendants moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [CR-16 Docs. 77-90]. The Government responded to these motions by filing its Memorandum in Opposition together with exhibits. [CR-16 Docs. 91; 91-1 to 91-17]. The Court heard arguments from counsel for all parties on March 24, 2014, regarding defendants' motions to dismiss for lack of subject matter jurisdiction. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant D.F. Crisp filed a Motion to Dismiss for Entrapment and Violation of Due Process [CR-16 Doc. 98], as well as a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-16 Docs. 99; 101]. On that same day, Defendant Bumgarner filed a Motion to Dismiss for Entrapment and Violation of Due Process [CR-16 Doc. 102], as well as a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-16 Docs. 100; 102-1]. Finally, Defendant D.C. Crisp, on March 28, 2014, filed a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction [CR-16 Docs. 103; 104]. His brief, however, contained an argument asserting the Indictment against him should be dismissed based upon law enforcement officers' alleged due process violations. [CR-16 Doc. 104 at 9]. The Government responded with separate memoranda filed April 11, 2014, and April 17, 2014. [CR-16 Docs. 105; 106]. All of the defendants' motions are now ripe for the Court's review.

STANDARD OF REVIEW[9]

Federal subject matter jurisdiction in a criminal case - this Court's statutory or constitutional power to adjudicate cases - can never be forfeited or waived. Consequently, defects in subject matter jurisdiction require correction regardless of when the error is raised. United States v. Cotton, 535 U.S. 625, 630 (2002); United States v. Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (any action by a court without subject matter jurisdiction is ultra vires and therefore void).

In contrast, certain defects in an indictment are not fatal to a court's subject matter jurisdiction because the grand jury right can be waived. Cotton, 535 U.S. at 630; United States v. Carr, 303 F.3d 539, 542-43 (4th Cir. 2002). Cotton thus directs the Court to examine the nature of the error about which the defendants complain. The distinction between indictments containing a non-fatal defect versus those containing a defect depriving a court of subject matter jurisdiction lies with whether the grand jury failed to allege an essential element of the crime, which is a non-fatal defect, or whether it failed to allege behavior that was criminal, a fatal defect going to a court's power to adjudicate guilt and punishment. Hartwell, 448 F.3d at 717. See also United States v. Peter, 310 F.3d 709, 715-16 (11th Cir. 2002) (holding a court is without jurisdiction to accept a guilty plea to a non-offense and all criminal proceedings thereafter are void); United States v. Moloney, 287 F.3d 236, 239 (2d Cir. 2002) (holding a guilty plea does not waive a claim that the indictment charges a non-offense because such a claim asserts a fatal jurisdictional defect); United States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir. 2003) (citing Peter and holding a court lacks subject matter jurisdiction to enter a judgment of conviction when the indictment charges no offense under applicable law).

In case CR-15, defendants Jerry and Jerome Parker contend the Court lacks subject matter jurisdiction over one overt act charged in Count One and the offense charged in Count Two. With regard to case CR-16, defendant Bumgarner contends the Court lacks subject matter jurisdiction over the offenses charged in Count One, Count Five, and Count Six against him. [CR-16 Doc. 77 at 1-6]. Defendant D.C. Crisp contends the Court lacks subject matter jurisdiction over the offenses charged in Counts One through Six, inclusive, against him. [CR-16 Doc. 78 at 1-6]. Defendant D.F. Crisp contends the Court lacks subject matter jurisdiction over the offenses charged in Count One, Count Four, Count Five, and Count Six against him. [CR-16 Doc. 86 at 1-6].

Where, as here, the alleged defect is not merely a missing element or fact, but is an allegation of conduct that, as a matter of law, would be beyond the purview of the statutes charged, the alleged defect implicates this Court's subject matter jurisdiction and must be addressed.

The issue to be resolved is whether the alleged killing of wildlife occurred on property over which the federal government had authority to exercise legislative control. Because the issue in these cases is before the Court on the defendants' motions to dismiss, the Court must assume that all facts proffered by the Government or alleged by the grand jury are true. United States v. Terry, 257 F.3d 366, 367 (4th Cir. 2001); United States v. Lund, 853 F.2d 242, 244 (4th Cir. 1988) (assuming, for purposes of defendant's dismissal motion, that he participated in all acts described in the indictment).

FACTUAL BACKGROUND IN CR-15

Set forth below are the facts alleged by the grand jury in the "Overt Acts" portion of the CR-15 Indictment which the Court assumes to be true at this stage of the proceedings.

1) JERRY FRANCIS PARKER was an owner and operator of War Paint Kennels, a hunting guide service located in Rabun County, Georgia. On or about October 24, 2011, in Rabun County, JERRY FRANCIS PARKER received $1500 in cash to provide a multi-day guided bear hunt to a customer ("the customer") whom he knew to be a North Carolina resident and to be licensed to hunt only in North Carolina. The customer had arranged for this hunting trip through telephone and email communications between himself in the Western District of North Carolina and JERRY FRANCIS PARKER in Georgia.
2) On or about October 24, 2011, JERRY FRANCIS PARKER directed CARL W. JUNALUSKA II to guide the customer on a bear hunt. JUNALUSKA complied, and took the customer hunting in Macon County, North Carolina, in the Nantahala National Forest. JUNALUSKA did not have a valid North Carolina guide license. Neither JUNALUSKA, JERRY FRANCIS PARKER, nor War Paint Kennels possessed a United States Forest Service special-use authorization, which was legally required in order to conduct a work activity or service, including a hunting guide service, in the national forest.
3) Later in the day on or about October 24, 2011, JEROME BROCK PARKER guided the customer on a bear hunt in Macon County, North Carolina, in the Nantahala National Forest. JEROME BROCK PARKER directed the customer to shoot an American black bear, and the customer did so, killing it. That bear was a juvenile, weighing less than the 50 pounds minimum required by North Carolina law. North Carolina law limits a hunter to taking only one bear per season. JEROME BROCK PARKER informed the customer that he could tag and report the bear, in compliance with state wildlife laws, but that if the customer wanted a bigger bear they could get one. JEROME BROCK PARKER called his father, JERRY FRANCIS PARKER, and explained what had happened, and JERRY FRANCIS PARKER told the customer that it was up to the customer to decide what to do, but if the customer wanted to keep hunting, they could get him another bear. After that conversation, JEROME BROCK PARKER advised the customer to hide the bear carcass in a cave, not report it, and to continue hunting. The customer then hid the carcass in a cave and continued hunting. JEROME BROCK PARKER, also, did not possess a United States Forest Service special-use authorization permitting him to conduct a work activity or service in the national forest.
4) On or about October 25 and 26, 2011, JERRY FRANCIS PARKER arranged for other persons whose identity is known to the Grand Jury to guide the customer on bear hunts in Macon County, North Carolina, but no bear was taken.
5) On or about October 27, 2011, JERRY FRANCIS PARKER guided the customer on a bear hunt in Macon County, North Carolina, but this hunt was unsuccessful. JERRY FRANCIS PARKER then drove the customer into Rabun County, Georgia, and guided him on a bear hunt there, although he knew the customer did not have a Georgia hunting license. That hunt, too, was unsuccessful.
6) Later on or about October 27, 2011, JERRY FRANCIS PARKER arranged for WALTER HENRY STANCIL to take the customer on a bear hunt in Rabun County, Georgia. STANCIL took the customer to a location in Rabun County and directed the customer to an area where STANCIL maintained a bait site, using a chocolate product as the bait. Georgia law prohibits the use of any type of bait to concentrate the bear population in any area or to lure them to any location that gives or might give a hunter an unnatural advantage when hunting bear. STANCIL described the various bears that frequented that site and gave the customer instructions on which ones should or should not be shot. Later that day, at that site, the customer shot and killed an adult black bear. WALTER HENRY STANCIL and his adult son, WALTER CALE STANCIL assisted the customer in transporting the bear carcass to the residence of JERRY FRANCIS PARKER, using WALTER CALE STANCIL's Toyota truck. JERRY FRANCIS PARKER and the customer processed the bear carcass. PARKER directed the customer to falsely report that the bear had been taken in North Carolina by "punching" his North Carolina license and reporting the kill to North Carolina wildlife authorities within 48 hours.
7) On or about October 28, 2011, the customer transported the skin and meat from the bear from Rabun County, Georgia, into Macon County, North Carolina.

[CR-15 Doc. 1 at 2-4].

FACTUAL BACKGROUND IN CR-16

Set forth below are the facts alleged by the grand jury in the CR-16 Indictment which the Court, like the prior factual recitation, assumes to be true.

COUNT ONE
From on or about November 17, 2010, through on or about December 13, 2011, in Graham County, within the Western District of North Carolina, and elsewhere, the defendants 1) DAVID CHADWICK CRISP, 2) DAVID FRANK CRISP; 3) TOMMY GENE QUEEN, 4) MITCHELL ALLEN JENKINS, and 5) ROBERT WILLIE BUMGARNER, did unlawfully, willfully, knowingly and intentionally combine, conspire, confederate and agree with one another and with others known and unknown to the Grand Jury to knowingly acquire, receive, and transport wildlife with a market value in excess of $350, that is, American black bear and whitetail deer, which the defendants knew was taken, possessed, and transported in violation of and in a manner unlawful under Federal law, that is, Title 18, United States Code, § 13 and Title 36 CFR § 261.8(a), incorporating North Carolina law, that is, N.C. G.S. §§ 113-270.3(c), 113-291.1(b)(2), 113-291.2(a), 113-294(c1), 113-294(d), 113-294(r), and 15A N.C. A.C. 10B.0107, all in violation of Title 16, United States Code, §§ 3372(a)(1) and 3373(d)(1)(B).
OVERT ACTS
In furtherance of this conspiracy, and in order to effect the object thereof, the defendants did commit the overt acts, among others, that are set forth more fully in Count Two through Count Six of this Bill of Indictment, which are incorporated herein by reference.
OBJECT OF THE CONSPIRACY
It was the object of the conspiracy that the defendants would illegally take wildlife, that is, American black bear and whitetail deer, within the Nantahala National Forest and then transport that wildlife out of the National Forest for purposes of dismembering that wildlife and dividing portions of that wildlife among themselves and others. All in violation of Title 18, United States Code, Section 371.
COUNT TWO
On or about September 7, 2011, in the Nantahala National Forest, in Graham County, within the Western District of North Carolina, and elsewhere, the defendant, 1) DAVID CHADWICK CRISP, did knowingly acquire, receive, and transport wildlife with a market value in excess of $350, that is, an American black bear, which the defendant knew was taken, possessed, and transported in violation of and in a manner unlawful under Federal law, that is, Title 18, United States Code, § 13 and Title 36 CFR § 261.8(a), incorporating North Carolina law, that is, N.C. G.S. §§ 113.270.3(c), 113-291.1(b)(2), 113-291.2(a), 113-294(c1), and 113-294(r), in that the black bear had been taken during the closed season, had been taken with the use and aid of any artificial light, had been taken with the use and aid of a sugar-based material as bait, and of processed food products as bait, to wit, chocolate waste, had been taken without being validated on a big game harvest report card at the site of kill, and had been taken without being validated as a big game kill with the nearest big game cooperator agent. All in violation of Title 16, United States Code, Sections 3372(a)(1) and 3373(d)(1)(B).
COUNT THREE
On or about October 20, 2011, in the Nantahala National Forest, in Graham County, within the Western District of North Carolina, and elsewhere, the defendants, 1) DAVID CHADWICK CRISP, 3) TOMMY GENE QUEEN, and 4) MITCHELL ALLEN JENKINS, did knowingly acquire, receive, and transport wildlife with a market value in excess of $350, that is, an American black bear, which the defendants knew was taken, possessed, and transported in violation of and in a manner unlawful under Federal law, that is, Title 18, United States Code, § 13 and Title 36 CFR § 261.8(a), incorporating North Carolina law, that is, N.C. G.S. §§ 113-270.3(c), 113-291.2(a), and 113-294(c1), and 15A N.C. A.C. 10B.0107, in that the black bear had been taken as a female American black bear with a cub or cubs at its side, had been taken without being validated on a big game harvest report card at the site of kill, and had been taken without being validated as a big game kill with the nearest big game cooperator agent, and did aid and abet one another in the commission of such offense. All in violation of Title 16, United States Code, Sections 3372(a)(1) and 3373(d)(1)(B), and Title 18, United States Code, § 2.
COUNT FOUR
On or about October 26, 2011, in the Nantahala National Forest, in Graham County, within the Western District of North Carolina, and elsewhere, the defendants, 1) DAVID CHADWICK CRISP, 2) DAVID FRANK CRISP, 3) TOMMY GENE QUEEN, and 4) MITCHELL ALLEN JENKINS, did knowingly acquire, receive, and transport wildlife with a market value in excess of $350, that is, a whitetail deer, which the defendants knew was taken, possessed, and transported in violation of and in a manner unlawful under Federal law, that is, Title 18, United States Code, § 13 and Title 36 CFR § 261.8(a), incorporating North Carolina law, that is, N.C. G.S. §§ 113.270.3(c), 113-291.2(a), and 113-294(d), in that the whitetail deer had been taken during the closed season, had been taken without being validated on a big game harvest report card at the site of kill, and had been taken without being validated as a big game kill with the nearest big game cooperator agent, and did aid and abet one another in the commission of such offense. All in violation of Title 16, United States Code, Sections 3372(a)(1) and 3373(d)(1)(B), and Title 18, United States Code, § 2.
COUNT FIVE
On or about November 9, 2011, in the Nantahala National Forest, in Graham County, within the Western District of North Carolina, and elsewhere, the defendants, 1) DAVID CHADWICK CRISP, 2) DAVID FRANK CRISP, 3) TOMMY GENE QUEEN, 4) MITCHELL ALLEN JENKINS, and 5) ROBERT WILLIE BUMGARNER, did knowingly acquire, receive, and transport wildlife with a market value in excess of $350, that is, an American black bear, which the defendants knew was taken, possessed, and transported in violation of and in a manner unlawful under Federal law, that is, Title 18, United States Code § 13 and Title 36 CFR § 261.8(a), incorporating North Carolina law, that is, N.C. G.S. §§ 113.270.3(c), 113-291.2(a), and 113-294(c1), in that the black bear had been taken without being validated on a big game harvest report card at the site of kill, and had been taken without being validated as a big game kill with the nearest big game cooperator agent, and did aid and abet one another in the commission of such offense. All in violation of Title 16, United States Code, Sections 3372(a)(1) and 3373(d)(1)(B), and Title 18, United States Code, § 2.
COUNT SIX
On or about November 9, 2011, in the Nantahala National Forest, in Graham County, within the Western District of North Carolina, and elsewhere, the defendants, 1) DAVID CHADWICK CRISP, 2) DAVID FRANK CRISP, 3) TOMMY GENE QUEEN, 4) MITCHELL ALLEN JENKINS, and 5) ROBERT WILLIE BUMGARNER, on a separate occasion from that charged in Count Five of this Bill of Indictment, did knowingly acquire, receive, and transport wildlife with a market value in excess of $350, that is, an American black bear, which the defendants knew was taken, possessed, and transported in violation of and in a manner unlawful under Federal law, that is, Title 18, United States Code, § 13 and Title 36 CFR § 261.8(a), incorporating North Carolina law, that is, N.C. G.S. §§ 113.270.3(c), 113-291.2(a), and 113-294(c1), in that the black bear had been taken without being validated on a big game harvest report card at the site of kill, and had been taken without being validated as a big game kill with the nearest big game cooperator agent, and did aid and abet one another in the commission of such offense. All in violation of Title 16, United States Code, Sections 3372(a)(l) and 3373(d)(1)(B), and Title 18, United States Code, § 2.

[CR-16 Doc. 1 at 2-6].

DISCUSSION

The defendants advance three arguments in an effort to persuade the Court to dismiss the Indictments against them. First, they allege the Court lacks subject matter jurisdiction over various charges set forth in the Indictments. The defendants contend that the animals killed, assuming they were taken on federal land in the Nantahala National Forest ("NNF"), [10] were slain, for example, on "such tracts of property that was [sic] not condemned and cannot be owned by the government." [CR-15 Doc. 77 at 3]. In short, the defendants' first argument asserts a deficiency in the Government's authority to legislate with regard to the land it acquired encompassing the location of the offenses. The Government's lack of authority over the pertinent sites within the NNF, according to the defendants' argument, provides the Government no power to prosecute or punish the defendants' conduct resulting in the taking of wildlife there and thus deprives this Court of subject-matter jurisdiction. Additionally, the defendants contend that the grand jury's allegations are insufficient to assert any allegedly unlawful activities affecting interstate or foreign commerce under the Lacey Act. Second, four of the named defendants assert that they were entrapped by the law enforcement officers conducting the investigation in these matters. Finally, all of the defendants claim that the allegedly wrongful conduct by the officers carrying out this investigation was of such magnitude as to deprive them of their constitutional right to due process. These three[11] arguments raised by the defendants will be addressed seriatim.

I. Subject Matter Jurisdiction Over National Forest Lands

A. North Carolina's Land Grant Authority to the United States

1. N.C. Gen. Stat. § 104-5

In the years following the Civil War, state and federal officials, industrialists, conservationists, and concerned citizens throughout the country began discussions, at both the local and national level, about timber as a natural resource, its depletion, and the need or desire for a national forestry policy.[12] These discussions percolated up to state houses and Congress who, following debate and compromise, enacted legislation. As discussed in greater detail in Part I.C., below, the Executive and Legislative Branches of the federal government, in the late 1800s, began proclaiming public lands on the western frontier as parks and forest reservations. Having acquired the lands west of the Mississippi by purchase or conquest before granting statehood to the various U.S. territories, the federal government encountered little legal resistance, in pursuing its ambitious forest land set-aside project, from newly minted States.

On the East Coast, however, where title to property did not originate in the United States, the federal government had to begin a delicate conversation with the States and their citizens, who were the primary landholders of forested places. This discussion was focused upon the federal government's acquisition and administration of certain real property which needed to be accomplished within the constitutional parameters of our dual-sovereign system of government. As a concession to the States, Congress made clear that land obtained for forest reserves would be jointly governed by both sovereigns.

The jurisdiction, both civil and criminal, over persons within such reservations, shall not be affected or changed by reason of the existence of such reservations, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such reservation is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State.

Act of June 4, 1897, ch. 2, 30 Stat. 11, 32, 36 (1897) (herein the "Forest Management Act"). When considering how the federal government might exercise jurisdictional authority over any national forest lands, Congress determined that seeking permission, rather than forgiveness, from the States in this regard was ...


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