II. JUDICIAL RECOGNITION OF THE EXTRATERRITORIAL REACH

The seminal case on the issue of whether the Property Clause empowers the federal government to regulate nonfederal land is Camfield v. United States. 96/ Here, to encourage the building of a transcontinental railroad and settlement of the west, the federal government granted Union Pacific Railroad the odd-numbered sections on each side of a railway right-of-way. 97/ Daniel Camfield and another investor then acquired from the railroad the right to use all the odd-numbered sections in a pair of adjoining townships. 98/ The even-numbered sections remained in federal ownership. 99/

Purportedly to help irrigate their odd-numbered sections, 100/ the investors built fences only on their odd-numbered sections but with the effect of enclosing 20,000 acres of federal land. 101/ The federal land was Article IV land located within the State of Colorado. 102/ Since the federal and nonfederal lands involved were subject to the general jurisdiction of Colorado, the enclosure of federal land may have been abated as a nuisance under state law. 103/ But no state-law objection was raised. Instead, the federal government sued to compel removal of the fences under the Unlawful Enclosures of Public Lands Act of 1885. 104/ 

The Circuit Court of the United States for the District of Colorado found for the federal government and ordered the removal of the fences, even though the fences were all on private land. 105/ The Eighth Circuit affirmed. 106/ Appeal was taken to the Supreme Court on the grounds that the act was unconstitutional insofar as it applied to fences on private property. 107/ 

The Supreme Court unanimously found the enclosure of federal land a nuisance and, relying on the Property Clause, held “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.” 108/ At the end of its opinion, the Court restated its holding thusly: “in passing the act . . . , Congress exercised its constitutional right of protecting the public lands from nuisances erected upon adjoining property.” 109/ 

The Camfield Court’s recognition of the Property Clause’s extraterritorial reach is clear, but scholars debate the meaning of the case in terms of the extent of that reach. “Camfield stands only for the classic doctrine that the federal government has a power to protect its property which somewhat exceeds the self-help powers of private proprietors,” wrote Professor David Engdahl, currently of Seattle University School of Law. 110/ On the other hand, Professor Eugene R. Gaetke, currently of the University of Kentucky College of law, wrote that the Supreme Court in Camfield “viewed the . . . Act as protecting the potential users of the federal property, not the property itself.” 111/  

Some students of the Property Clause believe Congress may regulate conduct beyond the boundaries of federal land only insofar as the regulation protects federal land from physical harm. 112/ Others believe Congress, under the Property Clause, may also regulate private activity on nonfederal land if the activity threatens to interfere with the designated purpose or use of federal land. 113/ 

While debating the import of the Supreme Court’s words, the academic community would perhaps agree that the Supreme Court has shown a level of consistency when it comes to the Property Clause. “Over the years, the Supreme Court has interpreted the Property Clause infrequently but consistently,” wrote Professor Michael C. Blumm and student Oliver Jamin of Lewis and Clark Law School. 114/ “With nearly no exception, the Court has ruled that the federal power under the Property Clause is ‘without limitation.’” 115/ 

Professor Peter A. Appel, of the University of Georgia School of Law, is a scholar on the history of the Property Clause as well as its application. He concludes the framers of the constitution intended a broad reading of the Property Clause; he believes the Supreme Court’s broad application of the clause is correct. 116/ 

The threat-of-physical-harm limitation on the Property Clause’s extraterritorial reach is supported at first glance by United States v. Alford, 117/ decided 30 years after Camfield. Here the Court upheld a statute that prohibited the careless use of fire dangerously “near” federal land. 118/ The Court cited Camfield for the proposition that “Congress may prohibit the doing of acts upon privately owned lands that imperil the publicly owned forests.” 119/  

Alford has long been distinguished from Camfield. “[T]he Camfield statute had nothing to do with protection of the federal property from physical harm,” Professor Gaetke wrote. “Instead, its purpose was to ensure access to the public lands for pasturage and ultimately for settlement.” 120/ In his view, the Camfield statute “was protecting the congressional policy that the public lands should be settled as soon as possible.” 121/ 

For Professor Gaetke, the Court in Camfield recognized the distinction between regulating nonfederal land to protect federal land from physical harm and regulating nonfederal land to protect a congressional policy for the purpose or use of federal land. He called attention to the Court’s statement: “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.” 122/ 

The Camfield comments by the Supreme Court in Kleppe123/ support Professor Gaetke’s argument. While the Court at one point wrote unambiguously that “Canfield [sic] holds that the Property Clause is broad enough to permit federal regulation of fences built on private land adjoining public land when the regulation is for the protection of the federal property,” 124/ the Court later wrote, quoting from Camfield, that the Camfield statute was “for the protection of the public, or of intending settlers [on the public lands].” 125/ This equivocation supports Professor Gaetke’s argument that the Camfield Court recognized that it was upholding a statute designed to protect a congressional policy for the purpose or use of federal land.  

The Court in Kleppe identified a passage in Camfield that “refers to the scope of congressional power to regulate conduct on private land that affects the public lands.” 126/ In Camfield, the 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." 127/   

This passage lead Professor Engdahl to offer his conclusion, quoted earlier, that “Camfield stands only for the classic doctrine that the federal government has a power to protect its property which somewhat exceeds the self-help powers of private proprietors.” 128/ 

Professor Gaetke, on the other hand, interpreted the above Camfield passage as showing the Court recognized that Congress has the power, under the Property Clause, to regulate conduct on nonfederal land in order to further a congressional policy for the purpose or use of federal property, although the conduct poses no physical threat to the federal property itself. 129/ He supported this interpretation with a three-tiered argument. First, the singular “its” in the final clause of the passage is not parallel with the plural “public lands” used earlier in the passage. 130/ Second, although this problem may be dismissed as merely a grammatical error, the Court probably intended “its” to refer to Congress itself. 131/ Third, the Court was simply “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.” 132/   

In Block, 133/ the Eighth Circuit rejected Professor Gaetke’s interpretation of “its” in Camfield. The Eighth Circuit explicitly read “its” to mean “public lands.” 134/ The court could have just as well adopted the professor’s interpretation because the court’s understanding of the power granted under the Property Clause lead to the same result the professor commended to the courts. 

In Block, the Eighth Circuit upheld the sections of the Boundary Waters Canoe Area (BWCA) Wilderness Act of 1978 that prohibit motorboats and other motorized vehicles on nonfederal land and lakes within and partly outside the BWCA. 135/ The court found the act was designed to preserve the BWCA as wilderness, 136/ not to protect federal land from physical harm. The court observed that limiting Congress’s extraterritorial reach to the factual situations of Camfield and Alford would be a “narrow and improper construction of the property clause,” 137/ concluding: “Under this authority to protect public land, Congress’ [sic] power must extend to regulation of conduct on or off the public land that would threaten the designated purpose of federal lands.” 138/ 

Block came as no surprise after the Eighth Circuit revealed its expansive view of the Property Clause in United States v. Brown. 139/ Here the defendant, convicted of violating National Park Regulations prohibiting hunting in national parks, 140/ argued that the regulations were unconstitutional insofar as they applied to nonfederal lakes within national parks. 141/  

After first concluding that the state had impliedly ceded jurisdiction over the lakes within the park to the federal government, 142/ the court held in the alternative that the federal regulations were “a constitutional exercise of congressional power under the Property Clause.” 143/ Quoting the Supreme Court in Camfield as having emphasized that the “general Government doubtless has a power over its own property analogous to the police power of the several states, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case,” 144/ the court wrote: “we view the congressional power over federal lands to include the authority to regulate activities on non-federal public waters in order to protect wildlife and visitors on the public lands.” 145/ 

Next: Alford-Camfield Nexus

96. Camfield, supra note 8.

97. Id. at 519.

98. Id. at 519–520.

99. See id.

100. Id. at 520.

101. Id. at 522.

102. Id. at 524.

103. See “State and Federal Power,” supra note 57, at 307 n. 106.

104. Camfield, supra note 8, at 521. The statute was enacted in response to a rash of similar fencing schemes. Leo Sheep Co. v. United States, 440 U.S. 668, 683–684 (1979). The statute is codified at 43 U.S.C. Sec. 1061-16 (2017).

105. United States v. Camfield, 59 F. 562 (D. Colo. 1894).

106. Camfield v. United States, 66 F. 101, 104 (8th Cir. 1895).

107. Camfield, supra note 8, at 522.

108. Id. at 525.

109. Id. at 528.

110. See “State and Federal Power,” supra note 57, at 352.

111. Eugene R. Gaetke, “The Boundary Waters Canoe Area Wilderness Act of 1978: Regulating Nonfederal Property Under the Property Clause,” 60 Ore. L. Rev. 157, 171 n. 73 (1981) (hereinafter cited as “Regulating Nonfederal Property”).

112. See “State and Federal Power,” supra note 57, at 308, 352; Note, “The Property Power, Federalism, and the Equal Footing Doctrine,” 80 Colum. L. Rev. 816, 821 (1980).

113. “Congressional Discretion,” supra note 25, at 388–390; “Regulating Nonfederal Property,” supra note 111, at 169–174; “Helpless Giants,” supra note 60, at 252–253.

114. “Property Clause and Its Discontents,” supra note 4, at 798–799.

115. Id. “The only exception to the board interpretation of the Property Clause,” the authors noted, “came in the most reviled Supreme Court decision in constitutional history, Dred Scott v. Sandford [holding in 1857 that Scott, an African-American, was not a citizen of any state].” Id. at 799 n. 116 (insert added).

116. “The Power of Congress,” supra note 54, at 8 n. 29 and 117.

117. Alford, supra note 13.

118. Id. at 267. In 1979, the Ninth Circuit used Alford to hold that federal regulations prohibiting camping and building campfires without a permit within a national forest were applicable to the state-owned riverbeds within the national forest. Lindsey, supra note 61.

119. Alford, supra note 13, at 267.

120. "Regulating Nonfederal Property," supra note 111, at 170–171.

121. Id. at 171. Professor Gaetke observed that the narrower, threat-of-physical-harm use of the Property Clause in Alford is fully supported by the broader use of the Property Clause upheld in Camfield. Id. at 170 n. 69. “The fact that the rule in Camfield is authority for the rule in Alford does not mean, however, that the rules are coextensive,” he wrote. Id.

122. Id. at 171 n. 73 (emphasis provided by Professor Gaetke).

123. Kleppe, supra note 64.

124. Id. at 538 (emphasis added).

125. Id. at 540 (insert provided by the Court, emphasis added).

126. Id. at 538 (emphasis original).

127. Camfield, supra note 8, at 525–526 (emphasis added).

128. “State and Federal Power,” supra note 57, at 352.

129. “Regulating Nonfederal Property,” supra note 111, at 170–171 n. 71.

130. Id.

131. Id.

132. Id. (emphasis added).

133. Block, supra note 9.

134. The Eighth Circuit wrote: “In Camfield, the Court concluded that Congress possessed the power to control conduct occurring off federal property through its ‘power of legislation 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 solely to [the public lands’] own protection.’” Id. at 1249 (insert provided by the court; citation omitted). Cf. infra notes 171 and 175 and accompanying text.

135. The Boundary Waters Canoe Area Wilderness Act of 1978, supra note 17. As reported in Block, the Boundary Waters Canoe Area (BWCA) consists of a surface area of approximately 1,080,000 acres—920,000 acres of land and 160,000 acres of water. The federal government owns about 792,000 acres of land. The State of Minnesota owns about 121,000 acres of land in addition to the beds under the 160,000 acres of water. Private parties own about 7,300 acres of land. Block, supra note 9, at 1247.

136. Block, supra note 9, at 1250–1251.

137. Id. at 1249 n. 18.

138. Id. at 1249. The term “designated purpose” as used by the Eighth Circuit is the functional equivalent of Professor Gaetke’s “congressional policy” (see supra notes 120–122 and 132 and infra notes 149–152 and accompanying text), since the court stated: “Congress clearly has the power to dedicate federal land for particular purposes.” Block, supra note 9, at 1249. Congressional policy naturally underlies federal land use decisions. For example, as the title “Boundary Waters Canoe Area Wilderness Act” implies, the congressional policy underlying the statute is providing “for the orderly management of public use and enjoyment of that area as wilderness.” Pub. L. No. 95-495, 92 Stat. 1649, at Sec. 1. Congress relied solely on the Property Clause for its authority to enact that statute, and no other constitutional powers were considered in Block. “Regulating Nonfederal Property,” supra note 111, at 175 n. 93. Moreover, the doctrine of implied reservation of water rights was not considered in Block. Id. 

139. 552 F.2d 817 (8th Cir. 1977).

140. Id. at 819 (36 C.F.R. Secs. 2.11 and 2.32).

141. Id. at 819–820.

142. Id. at 820–821.

143. Id. at 821 (footnote omitted).

144. Id. at 822. The court also cited Kleppe where the Supreme Court quoted and arguably applied this passage. Kleppe, supra note 64, at 540–541. For Professor Engdahl, the Kleppe Court used this passage out of context. “State and Federal Power,” supra note 57, at 352. 

145. Brown, supra note 139, at 822.