I. The Constitutional Backdrop

Both Articles I and IV of the US Constitution provide clauses that grant power to the federal government over federal lands. These separate property clauses explain the dichotomization of federal lands into Article I property and Article IV property.

Just as Vatican City is an independent jurisdiction within Italy, 48/ so Article I land has traditionally been viewed “as to the state as much a foreign territory, as if it had been occupied by a foreign sovereign.” 49/ This view was modified in 1940 when the Supreme Court held that upon federal acquisition of Article I property, state civil laws continue in force over the property until abrogated by federal enactment. 50/ Yet the traditional view of Article I property continues to prevail. 51/ 

For federal land outside the District of Columbia to qualify as Article I property, two requirements must be satisfied. First, the land must be purchased for the erection of “needful Buildings,” like military bases. 52/ Second, the legislature of the state in which the property is located must consent to the United States’ acquisition of general jurisdiction over the property. 53/ 

The Article I property clause, known as the Enclave Clause, 54/ provides that Congress shall have the power: 

"To exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may . . . become the Seat of the Government of the United States, and to exercise all 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, dock-yards, and other needful Buildings." 55/ 

From as far back as 1818, the term “exclusive Legislation” has been equated with “exclusive jurisdiction.” 56/ Thus the Article I property clause is not only known as the Enclave Clause, it also may be known as the Jurisdiction Clause. 57/  

By contrast, the Article IV property clause is known as the Property Clause or, sometimes, the Territorial Clause. 58/ It simply 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.” 59/ The Supreme Court has long recognized that the “term territory, as used here, is merely descriptive of one kind of property; and is equivalent to the word lands.” 60/ 

Rather than empowering the federal government with general jurisdiction over Article IV lands, the Property Clause has traditionally been read to place the federal landowner in a limited position akin to that of a proprietor. 61/ The traditional view is that the states retain general jurisdiction over Article IV lands. 62/ This limited reading of the Property Clause is rooted in the doctrine of enumerated powers. The Supreme Court has long said that only the Enclave Clause, not the Property Clause, grants the federal government general jurisdiction over federal land within a state. In 1836, for example, the Court explained: 

"Special provision is made in the constitution, for the cession of jurisdiction from the states over places where the federal government shall establish forts, or other military works. And it is only in these places, or in the territories of the United States, where it can exercise a general jurisdiction." 63/

In a 1976 unanimous decision, the Court strongly implied that Congress possesses, under the Property Clause, full legislative power over conduct taking place on federal land, regardless of the conduct’s relationship to the land. 64/ In Kleppe v. New Mexico, 65/ the Court held that Congress has, under the Property Clause, the power to regulate wildlife living on federal land, 66/ although the wildlife is not itself federal property 67/ and is not damaging federal land. 68/  

Quoting from venerable precedent, the Court wrote that the “‘federal government doubtless has a power over its own property analogous to the police power of the several states. . . .’ In short, Congress exercises the power both of a proprietor and of a legislature over the public domain.” 69/ 

While sound under exceptions to traditional Property Clause doctrine, 70/ the Court’s decision in Kleppe is questionable under the precedent the Court cited. 71/ For example, after emphasizing that “Congress exercises the powers both of a proprietor and of a legislature over the public domain,” 72/ the Court cited, among other equally inconsonant precedent, United States v. Midwest Oil Co. 73/ The Court clearly implied that the Property Clause grants Congress legislative power over federal land. But Midwest Oil and the other cases cited stand only for the proposition that while Congress may, under the Constitution, assert legislative authority over Article IV lands no less, and no more, than over any other land in the United States, 74/ Congress may, under the Property Clause, additionally assert proprietary powers over Article IV lands. 75/ “Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein,” wrote the Court in Midwest Oil. “Like any other owner it may provide when, how and to whom its land can be sold.” 76/ 

Moreover, the Court stressed in Midwest Oil that laws made pursuant to the Property Clause “are not of a legislative character in the highest sense of the term . . . ‘but savor somewhat of mere rules prescribed by an owner of property for its disposal.’” 77/ Accordingly, the Supreme Court has long reviewed Congressional delegations of Property Clause power under a common-law agency approach, rather than under the stricter approach required by the separation of powers doctrine. 78/ 

In Kleppe, the Court’s reasoning and use of precedent may be explained under either of two theories. First, the Court simply may have mistaken the exceptions to traditional Property Clause doctrine for the rule. 79/ For example, since the Property Clause provides that Congress may “dispose of” federal lands, it has been settled since the early nineteenth century that Congress enjoys exclusive power to regulate the acquisition of interests in federal land. 80/ State laws creating or disregarding equitable or inchoate rights, for instance, have never been given effect on federal land. 81/ 

In addition, it has been settled since at least 1897 that Congress may, under the Property Clause, legislate to protect federal lands. 82/ This power to protect federal lands necessarily includes the power to control their occupancy and use. 83/ 

With Congress’s protective and dispositional powers in mind, the Court in Kleppe supported its assertion that Congress enjoys general jurisdiction over federal lands by noting that “the Property Clause gives Congress the power over the public lands ‘to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them.’” 84/ Thus the Court may have confused Congress’s exceptional powers under the Property Clause for proof that the Property Clause grants broad legislative authority.  

A second, more generous explanation is that the Court in Kleppe simply announced a new exception to traditional Property Clause doctrine: Congress may protect the wildlife living on federal land. 85/ Although this explanation is belied by the Court’s broad reading of the Property Clause and by the Court’s failure to advise the courts and the bar that it was recognizing a new exception, this explanation at least serves the jurisprudential function of reconciling Kleppe with established precedent.  

The federal government has long sought to protect the designated purpose or use of federal land from nuisances whose situs is on adjoining nonfederal land. On occasion, the federal government has brought suit in its capacity as a landowner. In United States v. Luce, 86/ for example, the US government prevailed in a common-law nuisance action. The defendant was a manufacturing company allegedly emitting nauseating odors to the annoyance of the patients of the federal government’s nearby quarantine station. 87/ By contrast, in United States v. County Board of Arlington County, 88/ the US government lost in a nuisance action. Here Arlington County, Virginia, had approved the construction of a complex of high-rise buildings that allegedly would visibly intrude on the monumental core of nearby Washington, D.C. 89/  

In the early 1970s, the federal government considered bringing a nuisance action to stop a private entrepreneur’s plan to build a large tower on nonfederal land immediately overlooking the battlefield site at Gettysburg National Military Park. 90/ After litigation initiated by the Commonwealth of Pennsylvania, 91/ the entrepreneur agreed to build the tower at a greater distance from the battlefield site. 92/ 

In 1976, the National Park Services displayed its dissatisfaction with judicial relief, asking Congress to give it, under the Property Clause, explicit authority to regulate private activity on nonfederal land peripheral to the Redwoods National Park. 93/ The Office of Management and Budget (OMB) quashed the proposal after determining that the bill was constitutionally infirm insofar as the regulation would constitute the taking of private property without just compensation. 94/ The OMB did not address whether the Property Clause empowers the federal government to regulate nonfederal land. 95/

Next: Extraterritorial Reach

48. Stephen E. Young & Alison Shea, “Separating State from Church: Researching the Legal System of the Vatican City State,” 99 L. LIBR. J. 589 (2007) (the authors identify Vatican City as “an enclave of Rome and a sovereign monarchical-sacerdotal state”). 

49. United States v. Cornell, 25 F. Cas. 650, 653 (No. 14,868) (C.C.D.R.I. 1820) (Justice Story on circuit in Rhode Island, explaining the federal government’s power over land on which a US fort had been built).

50. James Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940).

51. See, e.g., Pacific Coast Dairy, Inc. v. Department of Agriculture of California, 318 U.S. 285 (1943).

52. US Const. Art. I, Sec. 8, cl. 17.

53. See Paul v. United States, 371 U.S. 245, 264 (1963); Kohl v. United States, 91 U.S. 367, 371 (1875).

54. Peter A. Appel, “The Power of Congress “Without Limitation”: The Property Clause and Federal Regulation of Private Property,” 86 Minn. L. Rev. 1, 4 n. 15 (2001) (hereinafter cited as “The Power of Congress”).

55. US Const. Art. I, Sec. 8, cl. 17.

56. United States v. Bevans, 16 U.S. (3 Wheat.) 336, 388 (1818); James v. Dravo Contracting Co., 302 U.S. 134, 141 (1937); and Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930).

57. See David Engdahl, “State and Federal Power Over Federal Property,” 18 Ariz. L. Rev. 283, 290 (1976) (hereinafter cited as “State and Federal Power”).

58. “The Power of Congress,” supra note 54, at 4 n. 15.

59. US Const. Art. IV, Sec. 3, cl. 2.

60. United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840). The Property Clause power granted Congress by Article IV also applies to federally owed personal property. See, e.g., Nixon v. Sampson, 389 F. Supp. 107, 137 n. 80 (D.D.C. 1975). This article, however, addresses only Congress’s Property Clause power over federal and nonfederal real property. The ownership of the wolves of Denali is not important for purposes of this article. See “The Power of Congress,” supra note 54, at 122, where Professor Appel wrote: “because the government did not assert ownership over the wild horses protected in [Kleppe v. New Mexico, 426 U.S. 529, 546 (1976), upholding the Wild Horses Act], the case implies that Congress’s ability to protect these animals is independent of ownership.” Also see infra note 67 and accompanying text. The Property Clause is comprehensive in the sense that it encompasses all federal lands, including those held under the Enclave Clause. “State and Federal Power,” supra note 57, at 290 n. 19. In other words, all Article I lands can also be considered Article IV lands. See id. Therefore, this article discusses the Property Clause exclusively, since the Enclave Clause, while more powerful, is less inclusive. Moreover, at least with regard to federal park land, a predominate share of federal land is not Article I land but Article IV land. Exclusive jurisdiction has not been uniformly ceded to the federal government. Joseph L. Sax, “Helpless Giants: The National Parks and the Regulation of Private Lands,” 75 Mich. L. Rev. 239, 247 n. 45 (hereinafter cited as “Helpless Giants”).

61. Paul v. United States, supra note 53, at 264 (dicta); Ft. Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 527 (1885) (dicta); “State and Federal Power,” supra note 57, at 296. The federal government differs, however, in a fundamental way from an ordinary proprietor of land. While an ordinary proprietor may enforce his or her will by limited self-help, his or her only recourse is often to state courts and law. Baltimore Transit Co. v. Faulkner, 20 A.2d 485 (Md. 1941)(a person whose interest in land is harmed by a private nuisance may abate the nuisance by entering the land where it originates, so long as he or she causes no unnecessary injury). By contrast, the United States may enforce its will as proprietor through the device of criminal sanctions. United States v. Briggs, 50 U.S. (9 How.) 351 (1850). For example, in United States v. Alford, supra note 13, the Supreme Court upheld a federal statute that prohibited the careless use of fires “near” forest, timber, or other inflammable materials on federal lands. Id. at 267. The constitutional basis for this extraordinary self-help is the Property Clause. Relying on Alford, the Ninth Circuit has said that it “is well established that this clause grants to the United States power to regulate conduct on nonfederal land when reasonably necessary to protect adjacent federal property.” United States v. Lindsey, 595 F. 2d 5, 6 (9th Cir. 1979) (federal regulations prohibiting camping and building campfires without a permit within a national forest are applicable to state-owned riverbeds within a national forest). Another important difference between the federal government and an ordinary proprietor lies in the federal government’s immunity from state and local taxation. Van Brocklin v. Tennessee, 117 U.S. 151, 175, 179–180 (1886).

62. “State and Federal Power,” supra note 57, at 296.

63. Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 737 (1836). See also Pollard v. Hagan, 44 U.S. (3 How.) 212, 223–224 (1845).

64. Kleppe v. New Mexico, 426 U.S. 529, 540 (1976). Indeed, the Eighth Circuit has said that Kleppe held “that Congress possessed full legislative/police power over activity occurring on federal property. In other words, any conduct taking place on United States land may be subject to congressional authority, regardless of its relationship to that land.” Block, supra note 9, at 1248 n. 16 (emphasis original, citation omitted).

65. Kleppe, supra note 64.

66. Id. at 540–541.

67. Id. at 537 n. 8; cf. “The Power of Congress,” supra note 45, at 122 and quoted from in supra note 60.

68. Kleppe, supra note 64, at 537.

69. Id. at 540 (quoting from Camfield, supra note 8, at 525).

70. “State and Federal Power,” supra note 57, at 349–352; see infra notes 110 and 128 and accompanying text.

71. “State and Federal Power,” supra note 57, at 351–352.

72. Kleppe, supra note 64, at 540.

73. Id. 

74. General grants of power such as the Commerce Clause, for example, enable Congress to regulate conduct everywhere in the nation, including federal lands. See, e.g., United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876); cf. “The Power of Congress,” supra note 54.

75. “State and Federal Power,” supra note 57, at 353.

76. United States v. Midwest Oil Co., 236 U.S. 459, 474 (1915). The other cases cited by the Court are Alabama v. Texas, 347 U.S. 272, 273 (1954), where Midwest Oil was merely quoted, and Sinclair v. United States, 279 U.S. 263, 297 (1929), where the Court, citing Midwest Oil, wrote: “Congress, in addition to its general legislative power over the public domain, had all the powers of a proprietor and was authorized to deal with it as a private individual may deal with lands owned by him.”

77. United States v. Midwest Oil Co., supra note 76, at 474 (quoting Butte City Water Co. v. Baker, 196 U.S. 119, 126 (1905)).

78. See, e.g., Midwest Oil Co., supra note 76, at 474–475; Butte City Water, supra note 77, at 125–126; and cf. “Property Clause and Its Discontents,” supra note 4, at 801–802 (discussing United States v. Grimaud, 220 U.S. 506 (1911)).

79. See “State and Federal Power,” supra note 57, at 351–352.

80. See, e.g., Wilcox v. Jackson, 38 U.S. (13 Pet.) 498, 516–517 (1839); “State and Federal Power,” supra note 57, at 352.

81. Id. at 297 n. 49.

82. Camfield, supra note 8.

83. See McKelvey v. United States, 260 U.S. 353, 359 (1922); Light v. United States, 220 U.S. 523 (1911).

84. Kleppe, supra note 64, at 540 (quoting Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917).

85. Kleppe, supra note 64, at 540–541.

86. 141 F. 385 (D. Del. 1905)(Art. I land).

87. Id. at 397–398.

88. United States v. County Board of Arlington County, 487 F. Supp. 137 (E.D. Va. 1979)(Art. I land).

89. Id. at 142.

90. “Helpless Giants,” supra note 60, at 248.

91. Pennsylvania v. Morton, 381 F. Supp. 293 (D.D.C. 1974); Commonwealth v. National Gettysburg Tower, Inc., 311 A.2d 588 (Pa. 1973).

92. “Helpless Giants,” supra note 60, at 248.

93. Id.

94. Id. at 249–250. OMB reviews all proposed Department of Interior legislation. Id. at 249. For Professor Sax, OMB’s fear that the proposal would fail as an uncompensated taking is “at best dubious.” Id. at 250.

95. Id. at 249.