By Sarah Foster
November 23, 2011
Josephine County, Ore. -- Two months ago Gil Gilbertson, the sheriff of this rural county in southern Oregon, drafted a 10-page report exploring the origins and extent of federal power within a state and emailed his findings to various parties, asking for comment.
Since the report was in rough-draft form he was somewhat surprised that it went viral, but it shows there are a lot of people hungry for information about how much power (particularly law-enforcement power) the federal government actually wields within a state, where that power comes from, and the limits to that power.
Gilbertson continued his research and recently completed a 13-page revised and updated version, retitled: Unraveling Federal Jurisdiction within a State. It is highly footnoted with references to statutes and court decisions.
This a “must read” for anyone concerned about infringements against the 10th Amendment and federal encroachments in general – like road closures, Wild Lands and Monument designations, mining and other resource uses. In other words, this is for anyone and everybody with an interest – no matter how casual -- in accessing the public lands, either as a “resource user” (a rancher or miner) or simply a casual vacationer who enjoys weekend camping.
“If you’d told me two years ago that I would be writing such a document, I would have probably walked away from you shaking my head,” the sheriff notes in the introduction.
“This paper is a result of a clash with the federal [U.S. Forest Service] law enforcement in this county, from citizens complaining of what can only be described as harassment and violations of their rights,” he explains. “The first time I approached the USFS the door closed regarding any discussion. The USFS advised me to file a Freedom of Information (FOI) request. “
Eventually Gilbertson was able to discuss the issue with the Forest Service. “Most of my questions were answered except for one: Where does the USFS’s authority come from? (bold-face in original). The answer(s) were surprising.”
Finding the answer is one of five tasks he set himself, which he lists as follows:
1. Identify true jurisdictional authority of the Federal Government
2. Examine and expose how the reserved powers of the States are usurped by federal agencies writing and enforcing their self-imposed codes and regulations
3. Examine how the health, safety, and welfare of the Citizens within the State are undermined
4. Provide a positive and equitable solution
5. Coordinate with like-minded Sheriffs to take a formal stance on these issues.
To sum up his conclusions regarding federal authority in a very small nutshell: the original idea was for the federal government to hold public lands within a state in trust, with the intention being for eventual disposal. Gilbertson writes:
“The public lands (out West) were considered by many as the ‘problem lands.’ However, the approved procedure, since the passage of the Resolutions of October 1780, was that the central government held the lands in trust. Upon a state being admitted to the Union, the federal government had the trust authority and obligation to dispose of the lands for expansion, exploration, occupancy, and production by setters.
“Slowly, over the years many of these ‘public lands’ held in trust seemingly became more desirable to retain, rather than for disposal. Newly formed federal regulatory agencies worked their way into existence, each taking an increasingly expanding role (enter ‘mission creep’). By 1976 complete and total disregard for the trust obligation to dispose of public land was made clear in the Federal Lands Policy and Management Act (FLPMA), which states: ‘…that it is the policy of the United States that the public lands be retained in Federal ownership.’”
Sheriff Gilbertson talked with NWV about his report, expanding on his views about the division of power between federal and state governments.
He strongly questions the legality and constitutionality of executive orders and various regulations, as well as laws like FLPMA, observing that Congress has the sole authority to make law, not the president, not the agencies. Not surprisingly he takes sharp issue with President Obama who has declared he’ll “circumvent the Constitution” through the use of executive orders.
“The Constitution is clear on who has police and legislative powers. Those executive orders are not law,” said Gilbertson.
And while FLPMA is a congressionally passed statute, it delegates undue powers to the agencies. “Congress cannot give an agency the ability to write rules and regulations and enforce them as if they were law,” he said. “Congress has to do that. These agencies write their own rules and regulations as they go along and enforce these as law.”
“The big issue, as I see it,” he continued, “is that all these things combine. You have DEQ, EPA, all these federal entities. And as all these federal agencies evolved over the years, there’s been mission creep. They decided, well, we need to fix this; this gives us more powers, and so forth, so we’ll just write down more rules and regulations. They were allowed to get away with it for whatever reason, and now they enforce those as laws. But it’s clearly stated that that can’t be done -- I spelled that out in my document,” he said.
Moreover, “Forest reserves were not federal enclaves subject to the doctrine of exclusive legislative jurisdiction of the United States. Local peace officers were to exercise civil and criminal process over these lands. Forest Service rangers were not law enforcement officers unless designated as such by state authority.”
The federal government sees it otherwise, so in addition to expanding claims for general regulatory power agencies like the Forest Service are attempting to extend the reach of law enforcement authority – a matter that adds to Gilbertson’s concerns.
“The U.S. Forest Service and BLM are really stepping outside their authority in that the Constitution does not give them that,” he observed. “The Tenth Amendment clearly reserves police rights to the states.”
Law Enforcement Power Grab
Sheriffs in other counties have taken note of this development. In his report Gilbertson refers to a one-page position paper by the Western States Sheriffs’ Association that concurs with his observations, and in fact grew from his earlier one. He writes, quoting from the WSSA statement:
“The USFS recently sent out a communication dated July 15, 2011, titled Federal Register publication of Final Proposed Rules [Title 36] 262, 261, and 212 purportedly to clarify and expand their authority.
On Sept. 21, the Western States Sheriffs Association responded with a position paper to this USFS publication by writing: “The membership of the Western States Sheriffs Association has reviewed the proposed rule changes and believes they exhibit the following: (1) an absolute disregard for the sovereignty of the individual States, (2) a disregard for the authority of the Office of Sheriff, and (3) A continued inability of the Forest Service to understand the mission and function of its Law Enforcement component."
Additionally, “This effort is viewed as an unnecessary and unauthorized expansion of federal police powers. The ultimate legal and constitutional authority for the protection of the public and the land within an individual county is vested in the Office of Sheriff. The Roles and responsibilities for the Office of Sheriff are well enumerated within the laws of each State, and the Sheriff possesses the authority to extend enforcement powers as appropriate.
“It is the position of this committee that the membership of the Western States Sheriffs’ Association utilizes all appropriate methods and resources to oppose this effort.”
Title 36 of the Code of Federal Regulations deals with the U.S. Forest Service. Section 212 is about Travel Management within the national forests.
NWV contacted Dave Brown, Sheriff of Skamania County, Wash., for additional information. Sheriff Brown is the chair of the Public Lands Committee of the WSSA that drafted the Position Paper. He said he hoped to have it adopted by the association at its annual meeting.
“It has not been adopted, but my hope is that it will be at our spring conference next March when it’s presented to the entire membership,” Brown said.
Brown said his committee relied for background on the first report Gilbertson sent out in mid-September. His further observations to NWV were particularly chilling.
“Essentially they are nationalizing their ability to do law enforcement. Right now the ability for them to enforce is based on … rules that are made at the district ranger’s office or the forest supervisor’s office,” he said. “They want to take that authority away from local rangers and forest supervisors and basically put it into their back pocket to do consistent enforcement nationally.”
A National Police Force in the Making
And this is about more than simply the road closures which are going on in all the national forests. As Brown sees it, these new provisions spell the way to a national police force. The new rules will give the federal law enforcement the authority to enforce state laws on county roads across national forest land and on roads outside the national forests.
Asked if they’d be enforcing all laws and ordinances on land outside the national forests, Brown said, “no – They would essentially be enforcing those state traffic laws that we would currently enforce and some drug enforcement laws, abandoned property issues, things like that.” “Most people don’t follow this or pay attention to it, but if we don’t [the federal government] will have everything they want to basically create a national police force,” he said.
Which is why the proposal has created a “firestorm” among western sheriffs. “We recognize it as them kicking us in the face and saying, ‘We don’t really care about you being the sheriff: we are going to give ourselves this authority,’” Brown said.
Corralling Runaway Government
The question for concerned Americans is how to stop the train, something easier said than done, though not necessarily impossible. “The real solution is to encourage Congress to comply with, and enforce the Constitution with the intent and guidance as written,” Gilbertson writes. “The PEOPLE vested the authority in Congress to accomplish this task. Put law enforcement aback where it belongs, within the several states. “It is my hope this letter [report] will serve as an awakening to the public and for elected officials to exercise the proper conduct to stop this runaway government. It is also my hope that Sheriffs throughout the United States will join to bring our Republic form of government back to the people.”
NOTE: Josephine County is on the California-Oregon state line across from Siskiyou County, a county that ranchers, farmers, miners and their allies are calling “ground zero” in the intensifying battle over land use and access to public lands. Siskiyou County is where the federal government, in lockstep with local environmentalists, seeks to remove three clean hydro-power dams on the Klamath River – an action that will wipe out what’s left of the once vibrant ranching and farming communities. A fourth dam, in Klamath County, Ore., is also slated for demolition.On Oct. 22, eight brave sheriffs – seven from northern California and one from central Oregon -- put their careers in law enforcement on the line by addressing an audience of nearly 1,000 people at a rally in Yreka, the county seat of Siskiyou County. The event was sponsored by Support Rural America and other groups; the panel was introduced and chaired by Jon Lopey, Sheriff of Siskiyou County.
“By their testimony these fine sheriffs’ verbally documented the assault on sovereignty and the abridgement of individual rights … that they have personally witnessed,” says retired Sheriff Jim R. Schwiesow in a recent NewsWithViews column.
Sheriff Gilbertson was not among the eight panelists. He and his wife had made vacation plans and reservations over a year ago and it was not possible to change these. But although not able to attend in person, his report on federal jurisdiction speaks eloquently for him.
The event was videotaped and posted at ConstitutionalSheriffs.com.
Contact Sheriff Gil Gilbertson
1 - Sarah Foster: Oregon Sheriff Stands Up Against the U.S. Forest Service: July 2, 2011
Archive of articles by Sheriff Gilbertson
1 - Unraveling Federal Jurisdiction within a State, Nov. 8, 2011
2 - Federal Jurisdiction Within a State: Posted by US-Observer, Oct. 8, 2011 (10 pages)
3 - Sheriff Wants Holders of Concealed Weapon Permits to Remain Private: 11-28-08
4 - Sheriff Seeking Stable Funding for His Office: 7-22-08
5 - Introducing Sheriff Gil Gilbertson 10-30-07
For More Information
1 - Public Lands Committee, WSSA: Position Paper: Re. Proposed Rules Changes by the U.S. Forest Service Law Enforcement: Sept. 21, 2011