IV. Judicial Review Under the Property Clause
The US Supreme Court in its Kleppe decision showed broad deference to the congressional determination that the protection of wildlife on federal lands constituted “needful” regulation “respecting” federal lands. 182/ The Court explained: “while courts must eventually pass upon them, determinations under the Property Clause are entrusted primarily to the judgement of Congress.” 183/ In support of this proposition, however, the Court cited only cases involving Congress’s regulation of the acquisition of interests in federal land. 184/
Broad judicial deference is justified with regard to Congress’s dispositional powers because courts are without guidance as to the needfulness of proprietary decisions. For example, there is no ascertainable standard to use in reviewing whether, when, and on what terms to dispose of federal land.
On the other hand, broad judicial deference is not justified with regard to Congress’s extraterritorial powers. Courts have long resolved conflicts between competing land uses. And as the Alford-Camfield Nexus Rule 185/ shows, courts have an ascertainable standard to use in reviewing the constitutionality of an extraterritorial reach.
In other words, when faced with a challenge to an extraterritorial provision in a statute or regulation, courts have the “needful” and the “respecting” or nexus, if you will, requirements of the Property Clause to use in measuring the exigencies of the case. The federal “government doubtless has a power over its own property analogous to the police power of the several states,” wrote the Supreme Court in Camfield, “and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case.” 186/
Consider Block, for instance. The first question is: Was the challenged statute, which regulated activity beyond federal land, reasonably necessary? Here the answer appears to be yes insofar as the sight, smell, and sound of motorized vehicles on nonfederal property within and partly outside the Boundary Waters Canoe Area (BWCA) interfered with the area’s wilderness designation. 187/ The second question is: Did the regulated activity have a substantial relationship to federal land? The answer appears to be yes; there was never any doubt as to the proximity of the regulated area. 188/
In addition, the court could take into consideration other relevant factors. The interference could be seen as unreasonable, for example, considering that the BWCA was identified as the only “lakeland canoe wilderness” in the United States. 189/ The operators of the motorized vehicles may not have intended to interfere with the area’s designated use, but they intended to do the acts that caused the interference. 190/ And the gravity of the interference perhaps outweighed the utility of the regulated activity. 191/
Thus in Block, there appears to have been a sufficient nexus between the federal land and the regulated activity. The Eighth Circuit could have reasonably determined that the BWCA Wilderness Act is a “needful” regulation “respecting” federal land.
By contrast, the Wild Horses Act would appear to fail, at some point, the Alford-Camfield Nexus Rule. 192/ The Wild Horses Act was upheld in Kleppe but it is difficult to conceive of the statute passing constitutional muster under all its applications. The Wild Horses Act regulates the entire United States to protect the federal lands’ designation as sanctuaries for wild free-roaming horses and burros. 193/ The statute provides that no person other than a United States’ official may destroy a wild free-roaming horse or burro that has strayed from federal land, no matter how far it is found from federal land. 194/
Killing a wild free-roaming horse or burro, in accordance with state law, probably causes less interference with the federal lands’ designation as a sanctuary the farther the animal strays from federal lands because, as it strays farther and farther, it is probably less likely to find its way back to a federal sanctuary. Assume a stray is killed in violation of the Wild Horses Act under circumstances indicating that there is no way the animal could have found its way back to federal land. Is the regulation under such circumstances reasonably necessary? And did the regulated activity have a substantial relationship to federal land? Here the answers would appear to be no. There would appear to be an insufficient nexus between the federal land and the regulated activity. In addition, the utility of the regulated activity, protecting one’s land, for example, is likely to outweigh the gravity of any resulting interference the farther from federal land that activity is undertaken. 195/
Moreover, when courts “measure . . . the exigencies of the particular case,” 196/ there are important policy considerations that counsel against an unlimited extraterritorial reach. The farther that reach extends from federal land, the greater the intrusion not only on state land regulation but on the extensive land regulation of municipal governments. 197/ Thus an unlimited reach may create unwarranted conflict, confusion, and duplicative efforts among the various governments. 198/ Violence also can result from differing views on land use. 199/
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