SENATE 3rd Reading Unamended March 31, 2016 SENATE 2nd Reading Unamended March 30, 2016Second Regular Session Seventieth General Assembly STATE OF COLORADO REENGROSSED This Version Includes All Amendments Adopted in the House of Introduction LLS NO. 16-0863.01 Bob Lackner x4350 SENATE BILL 16-160 SENATE SPONSORSHIP Lambert, Baumgardner, Grantham, Lundberg HOUSE SPONSORSHIP Lundeen, Senate Committees House Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning a clarification of the status of state police power jurisdiction on federally managed lands to address issues that affect the public safety of the residents of the state. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) In accordance with legal principles of federal law that are long understood, the bill clarifies that the state possesses, on its own behalf and on behalf of its political subdivisions, the jurisdictional right to respond to and take action on land owned and managed within the state by the United States bureau of land management (BLM lands) or the United States forest service (USFS lands) for which the federal government claims only a proprietorial interest when conditions on such lands adversely affect, or pose a clear and imminent danger to, life and the public health and safety of the residents of the state; except that, in the case of any conflict between the jurisdictional right asserted in the bill and any federal activity respecting BLM or USFS lands, the federal activity controls. The bill defines "jurisdictional right" to mean the ability of the state or a political subdivision of the state, as applicable, to exercise its lawful police powers over a given land area. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Legislative declaration. (1) The general assembly hereby finds, determines, and declares that: (a) In its "Patient Protection and Affordable Care Act" decision, Nat'l Fed'n of Indep. Bus., et al. v. Sebelius, et al., 132 S. Ct. 2566, released in June 2012 (ACA decision), the United States Supreme Court reaffirmed the status of the fifty states as "separate and independent sovereigns". (b) The court made it clear that the federal government "must show that a constitutional grant of power authorizes each of its actions". (c) In contrast, the Supreme Court further explained that "the same does not apply to the States, because the Constitution is not the source of their power. . . . The States thus can and do perform many of the vital functions of modern government...". Indeed, the Tenth Amendment to the United States Constitution explicitly states that "[t]he powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people." Among these powers the Tenth Amendment confers upon each state is the police power, or the right of a state, subject to due process and other limitations, to establish and enforce laws protecting the public's health, safety, and general welfare. (d) In the ACA decision, the Supreme Court added, "Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the 'police power'. . . . Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens' daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which 'in the ordinary course of affairs, concern the lives, liberties, and properties of the people' were held by governments more local and more accountable than a distant federal bureaucracy". (e) In that case, the Supreme Court also highlighted a vital role of the states' authority in relation to the federal government, stating, "The independent power of the States also serves as a check on the power of the Federal Government: 'By denying any one government complete jurisdiction over all the concerns of public life, [a federal system in which power is shared between the federal government and the states] protects the liberty of the individual from arbitrary power'." and "In the typical case we look to the States to defend their prerogatives by adopting 'the simple expedient of not yielding' to federal blandishments when they do not want to embrace the federal policies as their own.". (f) The Supreme Court, concluding this line of logic, declared, "The States are separate and independent sovereigns. Sometimes they have to act like it.". (g) In Surplus Trading Co. v. Cook, 281 U.S. 647, 650 (1930), the United States Supreme Court stated that "[i]t is not unusual for the United States to own within a State lands which are set apart and used for public purposes. Such ownership and use without more do not withdraw the lands from the jurisdiction of the State. On the contrary, the lands remain part of her territory and within the operation of her laws, save that the latter cannot affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal." In Kleppe v. New Mexico, 426 U.S. 529, 543 (1976), the United States Supreme Court stated that a state is free to enforce its criminal and civil laws on public lands over which the federal government does not assert exclusive jurisdiction. Further, the "Federal Land Policy and Management Act of 1976", enacted by Congress, states in Section 701 (g) (6) that "[n]othing in this Act shall be construed...as a limitation upon any State criminal statute or upon the police power of the respective States...or as depriving any State or political subdivision thereof of any right it may have to exercise civil and criminal jurisdiction on the natural resource lands...". (h) Article 1, section 8, clause 17 of the United States constitution, referred to herein as "Clause 17", states that the federal government will "exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings". (i) The domain of exclusive jurisdiction by the federal government is limited to the District of Columbia and other places purchased by the consent of the state legislatures for the erection of forts, magazines, arsenals, dockyards, and other needful buildings, which does not include vast acres of undeveloped land, incidental to the powers expressly granted within the constitution. (j) During the Eisenhower Administration, the United States government published a report titled "Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States" in which four basic areas of federal jurisdiction were identified: (I) Exclusive Legislative Jurisdiction: This term is applied when the federal government possesses, by whichever method acquired, all of the authority of the state, and in which the state concerned has not reserved to itself the right to exercise any of the authority concurrently with the United States except to serve civil or criminal process in the area for activities that occurred outside the area; (II) Concurrent Legislative Jurisdiction: This term is applied in those instances wherein by granting to the United States authority, which would otherwise amount to exclusive legislative jurisdiction over an area, the state concerned has reserved to itself the right to exercise, concurrently with the United States, all of the same authority; (III) Partial Legislative Jurisdiction: This term is applied in those instances wherein a state has granted authority to the federal government to legislate over an area of the state but the state has reserved to itself the right to exercise, by itself or concurrently with the United States, other authority constituting more than merely the right to serve civil or criminal process in the area, or the right to tax private property; and (IV) Proprietorial Interest Only: This term is applied to those instances wherein the federal government has acquired some right or title to an area in a state but has not obtained any measure of the state's authority over the area. In applying this definition, recognition should be given to the fact that the United States, by virtue of its functions and authority under various provisions of the constitution, has many powers and immunities not possessed by ordinary landholders with respect to areas in which it acquires an interest, and of the further fact that all its properties and functions are held or performed in a governmental, rather than a proprietary, capacity. (k) The report also stated, "It scarcely needs to be said that unless there has been a transfer of jurisdiction (1) pursuant to [Clause 17] by a Federal acquisition of land with State consent, or (2) by cession from the State to the Federal Government, or unless the Federal Government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being for exercise entirely by the State, subject to non-interference by the State with Federal functions. . . . The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State. . . . The consent requirement of [Clause 17] was intended by the framers of the Constitution to preserve the States' jurisdictional integrity against federal encroachment". (l) The "Inventory Report On Jurisdictional Status of Federal Areas Within the States", compiled by the United States General Services Administration in 1962, categorizes virtually the entirety of United States forest service (USFS) and bureau of land management (BLM) land in the state as "Proprietorial Interest Only". (m) Since 1962, the state has ceded concurrent jurisdiction to the federal government over certain lands dedicated to national parks and other purposes. However, as of the effective date of this act, at least 97% of the federal lands in Colorado are held in a proprietorial interest capacity only, and this includes almost the entirety of USFS and BLM land in the state. (n) The management of forest wildfires, wildfire mitigation efforts, and the investigation and prosecution of criminal acts such as arson and illegal drug production require a cooperative approach among federal, state, and local governments. (o) The United States department of agriculture through the USFS has been remiss in working with state and local governments to effectively plan, manage, and coordinate both routine and emergency responses to the constant wildfire threat to the state from land that it currently manages. (p) The ability of counties and the state to respond to wildfires that start on land managed by the United States government, and specifically by the USFS and the BLM, has been restricted by the federal government, resulting in clear and imminent dangers to the life, health, and safety of residents of the state, both within federal lands and on land within the territorial boundaries of counties and municipalities that border federal land. (q) The jurisdictional right of the state and its political subdivisions to mitigate potential risks to life and to the public health and safety should not be fettered by an intrusive and uncooperative federal bureaucracy. (r) By enacting this legislation, the state, on its own behalf and on behalf of political subdivisions, asserts the jurisdictional right it possesses under long-standing principles of federal law to respond to and to take action on public lands managed within the state by the USFS within the United States department of agriculture and the BLM within the United States department of the interior for which the federal government claims only a proprietorial interest when conditions on such land adversely affect, or pose a clear and imminent danger to, life and the public health and safety of the residents of the state. The assertion of such jurisdictional right will, among other things, facilitate the planning, management, and coordination of federal, state, and local response to wildfire threats and emergencies, thereby reducing the clear and imminent dangers such wildfires pose to life and to the public health and safety. SECTION 2. In Colorado Revised Statutes, add 3-2-102 as follows: 3-2-102. State and political subdivisions - jurisdictional right to respond to and take action on federally managed lands held in a proprietorial interest only by the federal government - bureau of land management - United States forest service - definitions. (1) As used in this section, unless the context otherwise requires: (a) "BLM lands" means lands within the state that are owned and managed by the bureau of land management within the United States department of the interior as of July 1, 2016, and all such lands thereafter acquired. (b) "Jurisdictional right" means the ability of the state or a political subdivision of the state, as applicable, to exercise its lawful police powers over a given land area. (c) "Political subdivision" means a county, city and county, city, town, service authority, school district, local improvement district, law enforcement authority, city or county housing authority, or water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district, or any other kind of municipal, quasi-municipal, or public corporation organized pursuant to law. (d) "Proprietorial interest" refers to those instances in which the federal government has acquired some right or title to an area in a state but has not obtained any measure of the state's authority over the area. (e) "USFS lands" means lands within the state that are owned and managed by the United States forest service within the United States department of agriculture as of July 1, 2016, and all such lands thereafter acquired. (2) In accordance with legal principles of federal law that are long understood, the state possesses, on its own behalf and on behalf of its political subdivisions, the jurisdictional right to respond to and to take action on BLM lands or USFS lands for which the federal government claims only a proprietorial interest when conditions on such lands adversely affect, or pose a clear and imminent danger to, life and the public health and safety of the residents of the state; except that, in the case of any conflict between the jurisdictional right asserted in this subsection (2) and any federal activity respecting the lands specified in this section, the federal activity controls. SECTION 3. Effective date. This act takes effect July 1, 2016. SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.