Camfield is authority for the proposition that the Property Clause may be used to protect congressional policy on federal land by regulating conduct on nonfederal land. This interpretation of Camfield is supported by two arguments.
First, while the statute upheld in Camfield may result in the protection of federal land from physical invasion, this protection, as the Court pointed out, was unnecessary “since the Government as an ordinary proprietor would have the right to prosecute for such a trespass.” 146/ The statute’s fundamental intent was to prohibit fences erected “under the guise of enclosing [only private land, but] which is useless for that purpose, and can only have been intended to enclose the lands of the Government.” 147/ Congress sought to keep federal land open for the public or intending settlers, 148/ thus “protecting the congressional policy,” as the Camfield Court wrote, “that the public lands should be settled as soon as possible.” 149/
Second, the Camfield Court recognized that it was upholding a statute designed not to protect federal land, but to protect a congressional policy for the designated purpose or use of that land. 150/ The Court explained:
"[T]he evil of permitting persons, who owned or controlled the alternative sections, to enclose the entire tract, and thus to exclude or frighten off intending settlers, finally became so great that Congress passed the act . . . , forbidding all enclosures of public lands." 151/
The Court concluded: “If it be found to be necessary for the protection of the public or of intending settlers, to forbid all enclosures of public lands, the Government may do so.” 152/
Even assuming arguendo that Camfield stands only for the rule that Congress may protect federal land from physical harm, the decision in Block 153/ is justified as a logical extension of that rule.
The rationale for the rule that Congress may, under the Property Clause, legislate to protect federal land lies in the recognition that, as the Camfield Court noted, a “different rule would place the public domain of the United States completely at the mercy of state legislation.” 154/ The same rationale applies to the rule that Congress enjoys exclusive power to dispose of federal land. 155/ Indeed, the dispositional power and extraterritorial power may be viewed as inextricably bound together. 156/ Just as an adverse possessor of federal land threatens to take that land, 157/ so a campfire dangerously near a federal forest threatens to take that forest. 158/
Under this rationale, the court in Block could have reasonably concluded that the Property Clause must contain the power to protect the designated purpose or use of federal land because activity that interferes with the purpose or use of federal land threatens to diminish the value of that land in its designated purpose or use just as a campfire dangerously near a federal forest threatens to diminish the value of that forest.
In addition, the court in Block could have reasonably concluded that just as Congress must enjoy exclusive power to dispose of federal land so that congressional policy on the disposition of federal land cannot be frustrated by a state, 159/ so Congress must enjoy the power to regulate activity on nonfederal land so that congressional policy on the purpose or use of federal land cannot be frustrated by a state. A contrary rule would place the protection of the designated purpose or use of federal land completely at the mercy of state legislation.
If it is clear that the Property Clause has an extraterritorial reach, the extent of the reach remains debatable. The Property Clause itself provides direction with the words “needful” and “respecting.” 160/ And further guidance can be found in Camfield, as well as Alford, based on the interpretation that Camfield is authority for the proposition that the Property Clause empowers Congress to regulate conduct on nonfederal land in order to protect congressional policy for the purpose or use of federal land. This article calls this guidance the Alford-Camfield Nexus Rule. 161/
While Camfield and Alford are not coextensive or interchangeable, they may be viewed in a sense as two sides of the same coin, both applying the words “needful” and “respecting” as used in the Property Clause. “Professor Gaetke has pointed out,” wrote Peter A. Appel, “that the rule of Camfield, properly read, comprises the rule of Alford. *** Alford is nevertheless important to buttress the proposition that the federal government can regulate activities off federal lands.” 162/
In Alford, the Court explained its holding thusly:
"The statute is constitutional. Congress may prohibit the doing of acts upon privately owned lands that imperil the publicly owned forests. The word “near” is not too indefinite. Taken in connection with the danger to be prevented it lays down a plain enough rule of conduct for anyone who seeks to obey the law." 163/
The more challenging question is not the extent of the extraterritorial reach to protect federal land, as in Alford, but the extent of that reach to protect congressional policy for the purpose or use of that land, as in Camfield and Block. If the power to protect congressional policy for the purpose or use of federal land is without limitation, Congress may potentially regulate the entire United States under that power. 164/
An important clue to answering this question is found in Camfield. The Court wrote:
"So long as the individual proprietor confines his enclosure to his own land, the Government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment to his neighbor; but when, under the guise of enclosing his own land, he builds a fence which is useless for that purpose, and can only have been intended to enclose the lands of the Government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large." 165/
Thus perhaps a clue to analyzing the constitutionality of a Camfield-type statute, designed to protect a congressional policy for the purpose or use of federal land, is to remember that a violation of the statute upheld in Camfield lay not merely in the obstruction of access to federal land. There also was the intent to obstruct as well as a level of unreasonableness.
Accordingly, an argument can be made that when the extraterritorial reach of a law designed to protect a congressional policy for the purpose or use of federal land is challenged, a necessary element of the regulated activity is that it be culpable in the sense that it threatens to interfere intentionally and unreasonably with the land’s designated purpose or use. The Supreme Court may have recognized this element in its discussion of Camfield in Leo Sheep v. United States. 166/ Here the federal government claimed an easement across private land to certain federal land. 167/ The government argued that this extraterritorial right arose by operation of the Camfield statute, since the statute prohibits the obstruction of access to federal land. 168/ Rejecting this argument, the Court quoted the above passage from Camfield and found that the private party, Leo Sheep Co., had not violated the statute by refusing to recognize the alleged easement. 169/ The Court no doubt determined that Leo Sheep Co. had not interfered unreasonably with the designated purpose or use of federal land. 170/
The above Camfield passage contains another clue, indicating unmistakably the breadth of the Property Clause. The statute upheld was designed to protect Congress in its proprietary capacity as trustee of the public lands for the public at large. This clue lends further support to Professor Gaetke’s interpretation of “its” in the only Camfield passage that has been identified explicitly as addressing the extent of Congress’s extraterritorial reach. 171/ Recall that the Camfield Court wrote:
"While we do not undertake to say that Congress has unlimited power to legislate against nuisances within a State, which it would have within a Territory, we do not think the admission of a Territory as a state deprives it of the power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the police power, so long as such power is directed to its own protection." 172/
Professor Gaetke argued in essence that this passage, including the words “its own protection,” 173/ shows the Supreme Court was “recognizing a power in Congress to legislate ‘for the protection of the public lands . . . so long as such power is directed’ to protecting the congressional policy for the use of those lands.” 174/ While interpreting “its” to mean “the public lands,” the Eighth Circuit in Blockheld that Congress may, under the Property Clause, protect the designated purpose or use of federal lands by regulating conduct on nonfederal lands. 175/
From the gist of the passages quoted above, an Alford-Camfield Nexus Rule can be formulated. Here the rule is offered as follows: an extraterritorial regulation, to be constitutional, must be reasonably necessary, thus satisfying the “needful” requirement of the Property Clause, while the regulated activity on nonfederal land must have a substantial relationship to federal land, thus satisfying the “respecting” requirement of the Property Clause. 176/
The Alford-Camfield Nexus Rule is an ascertainable standard with two elements. The first element asks: Is the law, which regulates activity beyond federal land, reasonably necessary? The second element asks: Does the regulated activity have a substantial relationship to federal land? Faced with a challenge to an extraterritorial provision in a statute or regulation, courts are equipped to ascertain the answers to these questions. 177/
The Alford-Camfield Nexus Rule can be seen in the following holding by the Camfield Court:
Considering the obvious purposes of this structure [intent], and the necessities [needfulness] of preventing the enclosure of public lands, we think that the fence is clearly a nuisance, and that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual. 178/
While the Court thus invoked a nuisance theory to justify the extraterritorial sections of the challenged statute, the Alford-Camfield Nexus Rule looks beyond and is not limited by the common law of nuisance as an analogy in evaluating the extraterritorial limits of the Property Clause. 179/ The Alford-Camfield Nexus Rule is consistent with Professor Appel’s Property Clause theory that relies on the Commerce Clause as an analogy. He wrote that Commerce Clause analysis is a better analogy for application of the Property Clause’s extraterritorial reach than an analysis based on nuisance law, given the breadth that the framers of the constitution intended for the Property Clause. 180/ “[T]he federal government’s regulation of extraterritorial activities to protect federal lands most resembles its efforts to regulate intrastate commerce under its Commerce Clause authority,” wrote Professor Appel. “Therefore, Congress can regulate extraterritorial activities under the Property Clause when substantially related to federal property.” 181/
Next: The Property Clause
146. “Camfield,” supra note 8, at 525.
147. Id. at 528.
148. See id. at 525; Kleppe, supra 64, at 540.
149. “Regulating Nonfederal Property,” supra note 111, at 171.
150. Id. at 171 n. 73.
151. Camfield, supra note 8, at 524–525.
152. Id. at 525 (emphasis added).
153. Block, supra note 9.
154. Camfield, supra note 8, at 526.
155. See, e.g., Wilcox, supra note 80, at 517.
156. See “State and Federal Power,” supra note 57, at 308 n. 110.
157. Cf. id. at 297 n. 50.
158. See Alford, supra note 13.
159. “Congressional Discretion,” supra note 25, 385 n. 16.
160. US Const. Art. IV, Sec. 3, cl. 2.
161. See infra notes 176–177 and accompanying text.
162. “The Power of Congress,” supra note 54, at 66 n. 302; cf. supra note 121.
163. Alford, supra note 13, at 267.
164. The Wild and Free-Roaming Horses and Burros Act of 1971, supra note 21, purports to regulate the entire country. See supra notes 21–25 and accompanying text and infra notes 192–195 and accompanying text.
165. Camfield, supra note 8, at 528 (emphasis added).
166. 440 U.S. 668 (1979).
167. Id. at 678–680.
168. Id. at 684–685.
169. Id. at 685.
170. See id.
171. See supra notes 126–127 and 129–134 and accompanying text.
172. Camfield, supra note 8, at 525–526 (emphasis added).
173. See supra notes 126–127 and 129–134 and accompanying text.
174. “Regulating Nonfederal Property,” supra note 111, at 170–171 n. 71.
175. Block, supra note 9, at 1249.
176. The Property Clause provides that “Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” US Const. Art. IV., Sec. 3, cl. 2. (emphasis added).
177. See Camfield, supra note 8, Alford, supra note 13, and Block, supra note 9.
178. Camfield, supra note 8, at 525 (insertions added).
179. Cf. “The Power of Congress,” supra note 54. Professor Appel analyzed the work of scholars who have looked to the common law of nuisance for guidance on the Property Clause. Id. at 87–90. He concluded:
"Those scholars who have examined the potential limits of the Property Clause turn not to the Constitution for possible guidance, but to the common law of nuisance, whether for substance or for a balancing mechanism to evaluate the extent of the federal government’s authority. Use of this analogy, albeit a start, overlooks the potential richness of this federal power and reflects a silent agreement with those who read the Property Clause narrowly that this Clause is not fully a part of the Constitution." Id. at 129.
180. Id. at 88, 91 n. 412, and 129.
181. Id. at 129–130.