|Wild Stallions on Public Land|
(To be technically and biologically precise, they are "feral"
not a native "wild" species. Congress can't get everything right.)
I know, the far right-wing constitutional fundamentalists don't even believe that the Supreme Court can interpret the Constitution. But better them than a bunch of cowboys with guns who forgot a change of underwear . . . and snacks. (I'm pretty sure the US Supreme Court always has clean underwear except for maybe one or two of them. And I think they have snacks in the robing room).
The case is Kleppe v. New Mexico (1976) ruling that the Wild Free-roaming Horse and Burro Act is constitutional. We usually call it "the Wild Horse Act." We don't deal with too many burros in Utah. And it's one of those lovely Acts of Congress that they give us to manage that is absolutely impossible to manage. We are authorized to kill horses, but do you think that's the PC thing to do? And I've even been sued in my own name once as part of an alleged conspiracy to obstruct the act. The US Attorney easily got the individual names switched out for the United States as we were within our official duties; then got the case dismissed. Slam dunk.
But back to Kleppe, who was, by the way, the Secretary of the Interior at the time. This is the case that the Cliven Bundy Bunch and even Utah Legislator/Lobbyist Ken Ivory simply don't accept even though it's been the law of the land for 40 years. (I know, I know, pure original-intenters believe the founders didn't intend Supreme Court interpretation. Yeesh! It's just been going on for some 200 plus years accepted by everybody else.)
Here's the good stuff:
That's the Property Clause relating to territories or property acquired by the United States. There is no Constitutional provision that requires all unclaimed, open, public lands in a territory be made the property of the state, county, or any individual upon statehood. Or that any territory or property owned by the US even has to become a state, as in say, Puerto Rico.Held: As applied to this case, the Act is a constitutional exercise of congressional power under the Property Clause of the Constitution, which provides that"Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."U.S. Cons., Art. IV, § 3, cl. 2.
Oh, yeah. Like a Wildlife Refuge! I get it!Although the Property Clause does not authorize "an exercise of a general control over public policy in a State," it does permit "an exercise of the complete power which Congress has over particular public property entrusted to it." [citation ommitted]. In our view, the "complete power" that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there.
(By the way, my law enforcement friend reminded me of something I already knew that States and the Federal government share jurisdiction over the public lands under their particular laws. And they can certainly cooperate even without cross-deputization. Don't get me started on Indian Country Jurisdiction, though. That will take an entire semester course.)
As Kleppe goes on:
If you want more exciting reading about the history of grazing under the Taylor Grazing Act of 1934 and the Federal Land Policy and Management Act of 1976 as set out by the US Supreme Court, you could try Public Lands Council v. Babbitt (2000).Appellees argue that, if we approve the Wild Free-roaming Horses and Burros Act as a valid exercise of Congress' power under the Property Clause, then we have sanctioned an impermissible intrusion on the sovereignty, legislative authority, and police power of the State, and have wrongly infringed upon the State's traditional trustee powers over wild animals. The argument appears to be that Congress could obtain exclusive legislative jurisdiction over the public lands in the State only by state consent, and that, in the absence of such consent, Congress lacks the power to act contrary to state law. This argument is without merit.Appellees' claim confuses Congress' derivative legislative powers, which are not involved in this case, with its powers under the Property Clause. Congress may acquire derivative legislative power from a State pursuant to Art. I, § 8, cl. 17, of the Constitution by consensual acquisition of land, or by nonconsensual acquisition followed by the State's subsequent cession of legislative authority over the land. In either case, the legislative jurisdiction acquired may range from exclusive federal jurisdiction with no residual state police power, to concurrent, or partial, federal legislative jurisdiction, which may allow the State to exercise certain authority.But while Congress can acquire exclusive or partial jurisdiction over lands within a State by the State's consent or cession, the presence or absence of such jurisdiction has nothing to do with Congress' powers under the Property Clause. Absent consent or cession, a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. [citations omitted throughout].
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