MARTIN REIDINGER, District Judge.
Defendants Jerome Brock Parker ("Jerome Parker") and Jerry Francis Parker ("Jerry Parker"), together with Carl Wesley Junaluska II,
Defendants were arraigned on June 17, 2013, and entered pleas of not guilty to both counts. Following their arraignments, defendants were released under pretrial supervision upon stated conditions. [CR-15 Docs. 8; 10]. On December 4, 2013, in nearly identical motions and memoranda, the Parkers moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [CR-15 Docs. 77-81]. The Government responded by filing its Memorandum in Opposition together with exhibits. [CR-15 Docs. 82; 83]. The Court heard arguments from counsel for all parties on March 24, 2014, regarding defendants' dismissal motions. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant Jerry Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [CR-15 Doc. 92] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-15 Doc. 92-1]. On that same day, Defendant Jerome Parker filed a Motion to Dismiss for Entrapment and Due Process Violations [CR-15 Doc. 93] and a brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-15 Doc. 94]. The Government responded with separate memoranda filed April 3, 2014, and April 18, 2014. [CR-15 Docs. 95; 96]. The Court conducted a second hearing on the defendants' motions on May 29, 2014.
Defendants David Chadwick Crisp ("D.C. Crisp") and David Frank Crisp ("D.F. Crisp"), Robert Willie Bumgarner ("Bumgarner"), together with Tommy Gene Queen,
Defendants were arraigned on June 17, 2013, and entered pleas of not guilty. Following their arraignments, defendants were released under pretrial supervision upon stated conditions. [CR-16 Docs. 8; 10; 17]. On December 4, 2013, in nearly identical motions and memoranda, the defendants moved the Court to dismiss the Indictment filed against them based upon the alleged want of subject matter jurisdiction. [CR-16 Docs. 77-90]. The Government responded to these motions by filing its Memorandum in Opposition together with exhibits. [CR-16 Docs. 91; 91-1 to 91-17]. The Court heard arguments from counsel for all parties on March 24, 2014, regarding defendants' motions to dismiss for lack of subject matter jurisdiction. At the conclusion of the hearing, the Court ordered additional briefing on the issue of the Court's subject matter jurisdiction. On March 28, 2014, Defendant D.F. Crisp filed a Motion to Dismiss for Entrapment and Violation of Due Process [CR-16 Doc. 98], as well as a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-16 Docs. 99; 101]. On that same day, Defendant Bumgarner filed a Motion to Dismiss for Entrapment and Violation of Due Process [CR-16 Doc. 102], as well as a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction. [CR-16 Docs. 100; 102-1]. Finally, Defendant D.C. Crisp, on March 28, 2014, filed a motion and brief supplementing his Motion to Dismiss for Lack of Jurisdiction [CR-16 Docs. 103; 104]. His brief, however, contained an argument asserting the Indictment against him should be dismissed based upon law enforcement officers' alleged due process violations. [CR-16 Doc. 104 at 9]. The Government responded with separate memoranda filed April 11, 2014, and April 17, 2014. [CR-16 Docs. 105; 106]. All of the defendants' motions are now ripe for the Court's review.
Federal subject matter jurisdiction in a criminal case—this Court's statutory
In contrast, certain defects in an indictment are not fatal to a court's subject matter jurisdiction because the grand jury right can be waived. Cotton, 535 U.S. at 630, 122 S.Ct. 1781; United States v. Carr, 303 F.3d 539, 542-43 (4th Cir.2002). Cotton thus directs the Court to examine the nature of the error about which the defendants complain. The distinction between indictments containing a non-fatal defect versus those containing a defect depriving a court of subject matter jurisdiction lies with whether the grand jury failed to allege an essential element of the crime, which is a non-fatal defect, or whether it failed to allege behavior that was criminal, a fatal defect going to a court's power to adjudicate guilt and punishment. Hartwell, 448 F.3d at 717. See also United States v. Peter, 310 F.3d 709, 715-16 (11th Cir.2002) (holding a court is without jurisdiction to accept a guilty plea to a non-offense and all criminal proceedings thereafter are void); United States v. Moloney, 287 F.3d 236, 239 (2d Cir.2002) (holding a guilty plea does not waive a claim that the indictment charges a non-offense because such a claim asserts a fatal jurisdictional defect); United States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir.2003) (citing Peter and holding a court lacks subject matter jurisdiction to enter a judgment of conviction when the indictment charges no offense under applicable law).
In case CR-15, defendants Jerry and Jerome Parker contend the Court lacks subject matter jurisdiction over one overt act charged in Count One and the offense charged in Count Two. With regard to case CR-16, defendant Bumgarner contends the Court lacks subject matter jurisdiction over the offenses charged in Count One, Count Five, and Count Six against him. [CR-16 Doc. 77 at 1-6]. Defendant D.C. Crisp contends the Court lacks subject matter jurisdiction over the offenses charged in Counts One through Six, inclusive, against him. [CR-16 Doc. 78 at 1-6]. Defendant D.F. Crisp contends the Court lacks subject matter jurisdiction over the offenses charged in Count One, Count Four, Count Five, and Count Six against him. [CR-16 Doc. 86 at 1-6].
Where, as here, the alleged defect is not merely a missing element or fact, but is an allegation of conduct that, as a matter of law, would be beyond the purview of the statutes charged, the alleged defect implicates this Court's subject matter jurisdiction and must be addressed.
The issue to be resolved is whether the alleged killing of wildlife occurred on property over which the federal government had authority to exercise legislative control. Because the issue in these cases is before the Court on the defendants' motions to dismiss, the Court must assume that all facts proffered by the Government or alleged by the grand jury are true. United States v. Terry, 257 F.3d 366, 367 (4th Cir.2001); United States v. Lund, 853 F.2d 242, 244 (4th Cir.1988) (assuming, for purposes of defendant's dismissal motion, that he participated in all acts described in the indictment).
Set forth below are the facts alleged by the grand jury in the "Overt Acts" portion
[CR-15 Doc. 1 at 2-4].
Set forth below are the facts alleged by the grand jury in the CR-16 Indictment which the Court, like the prior factual recitation, assumes to be true.
[CR-16 Doc. 1 at 2-6].
The defendants advance three arguments in an effort to persuade the Court to dismiss the Indictments against them. First, they allege the Court lacks subject matter jurisdiction over various charges set forth in the Indictments. The defendants contend that the animals killed, assuming they were taken on federal land in the Nantahala National Forest ("NNF"),
In the years following the Civil War, state and federal officials, industrialists, conservationists, and concerned citizens throughout the country began discussions, at both the local and national level, about timber as a natural resource, its depletion, and the need or desire for a national forestry policy.
On the East Coast, however, where title to property did not originate in the United States, the federal government had to begin a delicate conversation with the States and their citizens, who were the primary landholders of forested places. This discussion was focused upon the federal government's acquisition and administration of certain real property which needed to be accomplished within the constitutional
Act of June 4, 1897, ch. 2, 30 Stat. 11, 32, 36 (1897) (herein the "Forest Management Act"). When considering how the federal government might exercise jurisdictional authority over any national forest lands, Congress determined that seeking permission, rather than forgiveness, from the States in this regard was the more prudent approach, paving the way for a less contentious acquisition process.
At the end of the Nineteenth Century, having learned that the federal government was considering purchasing land in the Blue Ridge mountain range of the southeastern United States to become a national forest, the General Assembly of North Carolina prospectively ceded jurisdiction to the United States over lands within the state's borders contemplated for use as such. North Carolina's 1901 statute provided as follows:
Reading the original enactment of section 104-5 on a paragraph by paragraph basis makes plain the intent of the North Carolina legislature to convey sweeping legislative authority, and comprehensive jurisdiction, to the federal government. Section 1 grants the federal government the broad right to purchase— either voluntarily (by negotiated sale) or involuntarily (by condemnation)—property in Western North Carolina for the establishment of federal forest lands. Further, even though the federal government would become the fee simple owner of the property so acquired, North Carolina would retain concurrent jurisdiction with regard to civil and criminal process. North Carolina's retention of jurisdictional rights, as explained by the Supreme Court, served a salutary purpose. It "was made with a view to prevent the territory from becoming a sanctuary for debtors and criminals[.]" Ft. Leavenworth R. v. Lowe, 114 U.S. 525, 535, 5 S.Ct. 995, 29 L.Ed. 264 (1885) (describing similar provision of Massachusetts law).
Having granted the federal government the right to acquire North Carolina property in Section 1, the North Carolina legislature in Section 2 granted Congress the authority to "pass such laws as it may deem necessary to the acquisition" of such property in North Carolina. Sensitive to the property rights of its residents, however, North Carolina wished to provide protection for its rural mountain homesteaders. Section 2 thus appears to exempt estates of less than two hundred acres "from the provisions of this section." The defendants argue that this clause imposes on the Government the obligation to prove in this criminal proceeding that the property where the alleged unlawful events occurred was not a part of such a residential tract at the time of acquisition by the federal government. If the Government is unable to do so, defendants argue, then the property was exempt from such acquisition and control by the federal government as national forest land and the federal government possesses no jurisdiction. The Government, on the other hand, argues that this proviso is an affirmative defense in a condemnation proceeding: a right belonging to the homesteader whose lands the federal government seeks to condemn. It could only be employed, according to the Government, by the homesteader at the time of the federal government's initiation of an involuntary acquisition. Absent that, title would pass to the federal government and the property would become part of the national forest. Hence, the Government argues, the proviso imposes no additional element to proving the defendants' crimes herein.
This dispute as to the construction of Section 2 boils down to whether the proviso is a self-executing homestead exemption that by operation of law automatically removed from the universe of potential federal properties "as much as two hundred acres of any tract of land occupied as a home" (as defendants argue), or whether the proviso is in the nature of an avoidance or an affirmative defense that, if raised "by bona fide residents" at the time of condemnation would bar the federal government from taking their exempted land involuntarily (as the Government argues). The structure of the original § 104-5 statute discloses that the North Carolina legislature intended the proviso
The Court begins by considering what the North Carolina General Assembly accomplished in drafting section 2. This section contains operational provisions: it gives the federal government the authority to formulate legislation aimed at the federal government's manner of acquiring North Carolina property from the State's residents. The federal government, therefore, was given the authority to develop a legal procedure by which it could acquire property in North Carolina via condemnation for use as federal forest land. The federal government adopted such procedures when it passed the Weeks Forestry Act in 1911, discussed more fully below. Given that the North Carolina legislature granted the federal government unbridled authority to develop a procedure to acquire land within North Carolina for the common good, it follows logically that the State legislature would then place the burden of blocking any such acquisition on the individual property owner intent upon maintaining his land, if he so chose.
Put simply, the State gave the federal government the power to create a cause of action enabling it to take North Carolina land for federal forest purposes. Aggrieved North Carolina land owners, on the other hand, were given a trump card of sorts by the General Assembly in the form of the affirmative defense of exemption. "Generally speaking, affirmative defenses share the common characteristic of a bar to the right of recovery even if the general complaint were more or less admitted to." Emergency One, Inc., v. Am. Fire Eagle Engine Co., 332 F.3d 264, 271 (4th Cir. 2003) (citation omitted). At the very least, the land owner could stop the federal government's seizure of his home (and up to 200 acres of his land) no matter how legitimate or generous the federal government's acquisition procedure turned out to be. In addition, Section 2 is somewhat akin to the affirmative defense of set-off. For example, a land owner, holding 600 acres of property that the government would like to acquire, could claim as exempt only "as much as two hundred acres" and only if that two hundred acres was a part of a "tract of land occupied as a home[.]" Accordingly, the land owner could set-off his home and two hundred acres of his choice;
Section 3, the last substantive section of the enactment, confers broad power on Congress to pass civil and criminal laws
In 1907, six years after enacting legislation permitting the federal government to acquire title and concurrent jurisdiction over forest lands in North Carolina pursuant to § 104-5, the State's General Assembly passed a similar law beneficial to the federal government but for a different purpose. In accordance with what would later become N.C. Gen.Stat. § 104-7, the North Carolina legislature granted the federal government the authority to acquire by purchase, condemnation, or otherwise, pursuant to the Enclave Clause, "any land in the State required for customhouses, courthouses, post offices, arsenals, or other public buildings whatever, or
Id. For nearly one hundred years, before the reach of this statute's grant of land acquisition authority was greatly curtailed by amendment in 2005, the federal government could acquire land within North Carolina, for any federal governmental purpose, and would enjoy legislative jurisdiction over said land automatically upon title passing to the United States. As discussed below, North Carolina's grant of legislative power to the federal government pursuant to § 104-7 enabled the federal government to exercise concurrent jurisdiction pursuant to the Enclave Clause over the remaining forest land at issue herein.
The Supremacy Clause, U.S. Const., art. VI, § 2, grants the federal government the power to acquire title to real property within the States, whether by purchase, gift, or condemnation, without the consent of the State in which such property is located. Kohl v. United States, 91 U.S. 367, 371, 23 L.Ed. 449 (1875). But without the State's "consent" the United States does not obtain the jurisdictional benefits conferred by the Enclave Clause, Art. I, § 8, cl. 17. Therefore, where the federal government has acquired property in North Carolina without such consent, its status as title holder is the same as that of an ordinary private proprietor. James v. Dravo Contracting Co., 302 U.S. 134, 141-42, 58 S.Ct. 208, 82 L.Ed. 155 (1937). To better understand the present role of the Enclave Clause, it is necessary to understand its origin.
Near the end of the Revolutionary War, the delegates assembled in Philadelphia under the Articles of Confederation suffered continued harassment at the hands
3 Joseph Story, Commentaries, ch. XXIII, § 1214 (1833). The Enclave Clause confers power upon Congress:
U.S. Const. art. I, § 8, cl. 17 (emphasis added). The Enclave Clause envisioned two distinct goals: granting Congress unfettered power over the district to be established as the nation's capital, and granting Congress like power over property acquired inside the boundaries of States, with the consent of such States, for national safety and enjoyment.
3 Joseph Story, Commentaries, ch. XXIII, § 1219 (1833).
The Supreme Court, over time, has construed this Clause to expand the definition of "other needful buildings" while simultaneously narrowing the Clause's definition of "exclusive jurisdiction." See James, 302 U.S. at 143, 58 S.Ct. 208 ("We construe the phrase `other needful buildings' as embracing whatever structures are found to be necessary in the performance of the functions of the federal government."). While the Framers designed the Enclave Clause to provide Congress "exclusive" jurisdiction
Paul v. United States, 371 U.S. 245, 264-65, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963) (emphasis added). It is in this sense that Congress actually receives and accepts derivative legislative power over the real property acquired from a consenting State under the Enclave Clause. "[T]he legislative jurisdiction acquired may range from exclusive federal jurisdiction with no residual state police power, to concurrent, or partial, federal legislative jurisdiction, which may allow the State to exercise certain authority." Kleppe v. New Mexico, 426 U.S. 529, 542, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (internal citations omitted).
The federal government's acceptance of jurisdiction from a State, and therefore the quantum of jurisdiction the federal government derives over property it acquires within the State, has not always been clear. For example, prior to February 1, 1940,
After February 1, 1940, a State's transfer of legislative jurisdiction over real property did not take effect for federal purposes until formally accepted by the head of the federal department that would have control over the land. 40 U.S.C. § 3112(b) ("The individual shall indicate
The years preceding the Civil War saw the establishment of the Department of the Interior in 1849. Act of March 3, 1849, 9 Stat. 395. The Department of Agriculture, future home of the Forest Service, came about shortly thereafter. Act of May 15, 1862, 12 Stat. 387. The establishment of a national forest policy in general, and the idea behind designating national forest lands in particular, came to fruition following the War. The War occasioned not only the tragic loss of life, but also horrific property damage and destruction.
The rebuilding in the South and the population growth in the North after the Civil War, together with the nation's westward expansion, hinted at an impending lumber famine not previously experienced in this country. Between 1850 and 1910, the nation's annual timber lumber production increased eight-fold.
Congress' formal acts on forestry policy, initially, were snippets of lawmaking. It should be noted here that the first three most significant pieces of federal forestry legislation came about merely as amendments to other bills. The first of these, establishing the nation's first Forestry Agent, was a hasty amendment to seed purchase legislation that was itself a part of an omnibus governmental spending bill. The bill's language discloses the obvious cut-and-paste nature of the amendment:
Act of August 15, 1876, 19 Stat. 143, 167. The Commissioner of Agriculture chose Hough, the author of the paper "On the Duty of Governments in the Preservation of Forests," as the "man of approved attainments" to become the first Forestry Agent. Steen at 7. In 1878, Hough forwarded to the Agricultural Commissioner and to Congress his comprehensive 650 page detailed report simply entitled, "Report on Forestry." So impressed was Congress with Hough's work that it authorized the printing of 25,000 copies for distribution. Steen at 5. In 1886, Congress made the "Division of Forestry" and its Chief a permanent part of the Department of Agriculture enabling the Commissioner
The second significant piece of federal forestry legislation, which also came about merely as an amendment to another bill, was the Forest Reserve Act. This bill, once signed into law, was known initially as the Act of March 3, 1891. Later it took its title as the "Forest Reserve Act" from an eleventh-hour amendment.
Following the Civil War, Congress passed many measures aimed at westward expansion, including land-grant laws. Two such laws, the Timber Culture Act of 1873 and the Homestead Act of 1873, while approved with the best of intentions, led to widespread fraud in their application. Steen at 18. In the midst of repealing the two offending 1873 statutes, and when the twenty-three section bill to bring about such repeal was in conference between the House and Senate, some member of Congress attached an amendment designated as a new section twenty-four. Without debating this new section, both bodies of Congress passed the bill and President Benjamin Harrison signed it into law. Section 24, the only section of the bill dealing with the reservation of forest land, and whose topic would later lend its name to the entire law, read:
Act of March 3, 1891, ch. 561, 26 Stat. 1095, 1103 (herein the "Forest Reserve
President Harrison was succeeded by Grover Cleveland in 1893. Congress, meanwhile, faced with 15 new forest reserves and no administrator to manage them, allocated $25,000 to the National Academy of Sciences,
The outcry from federal legislators representing the western States was swift and furious. Congressional opponents of the new forests attached a rider, repealing the proclamation, to the appropriations bill necessary to fund the government for the following year. As his last act in office, President Cleveland vetoed that bill. Steen at 32.
At the beginning of his presidency, William McKinley called a special session of Congress specifically to appropriate money to keep the government functioning since his predecessor vetoed Congress' funding measure. Id. Congress thus began work on a new spending bill. The third significant piece of federal forestry legislation came into being as an amendment to this bill. President McKinley, an advocate for forest reserves, called upon Pinchot and others to "work[ ] the congressional cloakrooms" in an effort to dissuade House and Senate members from repealing the Washington's Birthday Reserves proclamation. Id. at 34. Pinchot was successful—the Sundry Appropriations Act of 1897, now known for its important amendment as the "Forest Management Act," passed. To assuage the resentment of those Congressional members representing the western States, a compromise was reached regarding the original bill. The Washington's Birthday Reserves proclamation would not be repealed but only suspended for 9 months to provide for land surveys. Further, the amendment's last provision resulted in the "reserves being established for timber and water supplies, settlers having rights-of-egress, mature timber being marked and designated, appraised, and sold at auction, and all water being used under State and Federal laws." Steen at 34. The critical provision of this part of the amendment stated:
Twenty years after passing the Forest Reserve Act, and ten years after North Carolina passed its 1901 enactment consenting to the federal government's future acquisition of its lands to become a national forest, Congress approved the first comprehensive national forest policy legislation, the Weeks Forestry Act. Act of Mar. 1, 1911, ch. 186, §§ 4-14, 36 Stat. 961, 962-3 (1911) (codified as amended at 16 U.S.C. §§ 480, 500, 515 to 519, 521, 552, and 563). Using the Forest Reserve Act, the Forest Management Act, and the NAS's National Forest Commission as templates, Congress fashioned the Weeks Act, establishing what was to become the National Forest System. The Weeks Act created the National Forest Reservation Commission and gave the NFRC the responsibility of identifying and acquiring, with the Agriculture Secretary's permission, suitable land for national forests. Further, the Weeks Act tasked the Secretary of Agriculture with administering and regulating lands included within the forest system so acquired by the NFRC.
Following Congress' passage of the Weeks Act in 1911, the Secretary of Agriculture, working through the NFRC, immediately began locating properties in western North Carolina to acquire on behalf of the United States as forest land, and then began acquiring such properties. Chief U.S. Forester at that time, Henry S. Graves, issued his "General Information" on the purchase of land under the Weeks Act located in the Southern Appalachian Mountains and Northern White Mountains on March 27, 1911.
The Indictment in CR-15 alleges the site where the undersized bear was taken in violation of law was located in Macon County, North Carolina, on land within the NNF. [CR-15 Docs. 1; 82-1]. The Government has filed in this case [CR-15 Docs. 83-1; 83-2; 83-3] the record documents from two condemnation proceedings instituted in this Court by the Secretary of Agriculture in 1915 and 1916 pursuant to his authority under the Weeks Act. The description of these actions as being in the nature of condemnation proceedings is somewhat misleading. A careful reading of each of the two Petitions discloses that the Secretary of Agriculture initially identified the persons he believed to be the record land owners of the property sought, and thereafter negotiated with them directly to arrive at a sale price per acre for their land. However, due to the incomplete and confusing land registry in Macon County at that time, the Secretary joined as defendants any and all persons potentially holding a claim to the subject property. [CR-15 Doc. 83-1 at 40-4; CR-15 Doc. 83-3 at 28-31]. As such, these two actions more accurately represent proceedings to quiet title rather than resemble traditional hostile condemnation proceedings.
In paragraph 4 of each Petition, the Secretary particularly alleged that the State of North Carolina, pursuant to chapter 17 of the 1901 North Carolina Session Laws, consented to the acquisition by the government of the lands described in the Petitions. [CR-15 Doc. 83-1 at 34; CR-15 Doc. 83-3 at 24]. All parties, therefore, were on express notice of the North Carolina statute by which the federal government sought to obtain the property, and thus the parties were on notice of the homestead exemption contained therein. Critically, all of the Answers filed in each proceeding admit these allegations in the Petitions. [CR-15 Doc. 83-1 at 57; 77; CR-15 Doc. 83-2 at 3; 14; 39; 41; 43; CR-15 Doc. 83-3 at 47; 49; 52]. No person, in any Answer filed in either proceeding, asserted that any portion of the property sought to be acquired by the federal government was exempt under the homestead provision of chapter 17, section 2, of the 1901 North Carolina Session Laws.
At the hearing held by the Court on March 24, 2014, the defendants produced an "Exchange Deed" [CR-15 Doc. 95-2] dated August 21, 1991, evidencing the exchange and transfer of properties between the federal government on the one hand, and Dabney Manning, Edwin Poss, and Mary Poss, on the other hand. In particular, the Exchange Deed describes NNF property conveyed by the federal government to these private persons in return for the receipt of their lands in North Carolina's Madison and Jackson Counties. Defendants asserted during the hearing that the undersized bear kill site was located on the property conveyed by the United States pursuant to the Exchange Deed, and thus the alleged offense occurred on private land. In response, the Government produced a survey plat [CR-15 Doc. 95-4] and National Forest Service map [CR-15 Doc. 95-1] indicating that the undersized bear unlawfully taken was not killed on any of the parcels referenced in the Exchange Deed and therefore was within the NNF. Defendants reply, in their supplemental filings [CR-15 Docs. 92-1; 94], that the Government's plat is inaccurate in that, except for two calls, "[a]ll the other calls set forth on this [plat] that the Government produced does [sic] not correspond to the meets and bounds description set forth in the [Exchange D]eed." [CR-15 Docs. 92-1 at 6; 94 at 6]. The defendants' argument in this regard fails for two independent reasons.
First, the Government's plat is, in fact, consistent with all of the calls set forth in the Exchange Deed. The plat, which shows the United States' conveyance of certain acreage out from forest service tracts N-510, S-31 G5, and S-17, shows many individual "corners" and lists both the new and old alphanumeric labels for each such "corner." The defendants' assertion that the Government's plat is inaccurate when compared with the calls contained in the Exchange Deed is incorrect and stems from the defendants confusing an old corner designation on the Government's plat with a new corner label in the Exchange Deed. For example, the Exchange Deed, on page seven, refers in the last paragraph to "CORNER 2C, a new corner (designated as corner 8e of USA tract N-510)[.]" [CR-15 Doc. 95-2 at 7]. When one carefully compares this call to the plat, one can see that the corner now labeled as "2C" is also the same corner formerly designated as "8e." Following the calls from the Exchange Deed by tracing the newly labeled corners as set forth on the survey plat leads one correctly around the external boundary of the property so conveyed according to the metes and bounds descriptions. Therefore, the Government's plat is consistent with all of the calls set forth in the Exchange Deed.
Second, and more importantly, the defendants' argument on this point is not a jurisdictional argument at all. In asserting that the bear was killed on private property, they are arguing that the Government will be unable to meet its burden of proof at trial as to one element of the crimes charged. The crimes charged, for
Finally, the Court turns to the issue of the federal government's authority to legislate regarding activity taking place on Macon County NNF lands. Though the federal government may become seized in fee simple of real property it acquires which is situated within North Carolina, its status as record title holder does little to define its power over such land due to the comity issues inherent in federalism. North Carolina retained concurrent jurisdiction over the lands within its borders when it ceded to the federal government jurisdiction over the Macon County lands later to become the NNF in accordance with North Carolina's 1901 enabling legislation. Because the federal government purchased the Macon County property that was to become NNF lands from the citizens of North Carolina, the power of the federal government over these NNF lands is determined by N.C. Gen.Stat. § 104-5. Since the federal government purchased this land from private property holders, taken together with the State's affirmative cession of some of its legislative authority (as opposed to the federal government acquiring land from a foreign nation by conquest or treaty
As for the federal government's jurisdiction over the NNF lands at issue in Macon County and acquired pursuant to N.C. Gen.Stat. § 104-5, the federal government enjoys concurrent jurisdiction with North Carolina consistent with the Supreme Court's interpretation of the Enclave Clause. It is irrelevant whether the federal government's acquisition of these lands occurred before or after February 1, 1940, for the purpose of determining whether the federal government accepted jurisdiction. The federal government's acceptance of jurisdiction with the jurisdictional limitations as set out in North Carolina's 1901 Act was either implicit or explicit. As for the Macon County property the federal government acquired before February 1, 1940, the federal government was deemed to have implicitly accepted such jurisdiction and jurisdictional limitations as offered by a State in conjunction with its residents' conveyance of property. Lowe, 114 U.S. at 528, 5 S.Ct. 995. As for the NNF property acquired federally after that date, the Secretary of Agriculture complied with 40 U.S.C. § 3112(b) by mailing a letter to then-Governor of North Carolina, Michael Easley, dated December 30, 2008, accepting concurrent jurisdiction over all land acquired in North Carolina for national forest purposes. [CR-15 Doc. 82-5]. Either way, both the United States and North Carolina
Gifford Pinchot's contribution to the development, use, and management of the nation's resources was not limited to the single dimension of forestry stewardship. He viewed timber production, commerce by inland waterways, and power generation, along with erosion control, flood abatement, and anti-sedimentation measures, not as isolated issues but as separate parts of a large puzzle whose correct assembly lay in understanding the interconnectedness of the pieces. Gifford's prescience about these matters would portend the creation of the Tennessee Valley Authority.
The Tennessee Valley Authority, "A Complicated Unity," available at http://www. tva.com/heritage/pinchot/index.htm (last accessed July 31, 2014) (see Appendix).
Approximately twenty-five years after President Theodore Roosevelt's term expired, President Franklin D. Roosevelt set about to launch a great experiment in America's Tennessee Valley. In the midst of a national depression with few jobs but abundant labor, and recognizing the plight of southern Appalachian farmers working land stripped of nutrients, President Franklin Roosevelt proposed the creation of a quasi-governmental corporation or "Authority" with a name taken from the place it sought to aid.
The Tennessee Valley Authority, "From the New Deal to a New Century," available at http://www.tva.com/abouttva/ history.htm (last accessed July 31, 2014) (internal quotations omitted) (see Appendix). "[I]n the interest of the national defense and for agricultural and industrial development, and to improve navigation in the Tennessee River and to control the destructive flood water in the Tennessee River and Mississippi River Basins," Congress created, and the President signed, legislation establishing "a body corporate
The Tennessee Valley Authority, "From the New Deal to a New Century," available at http://www.tva.com/abouttva/ history.htm (last accessed July 14, 2014) (internal quotations omitted) (see Appendix). The "especial" purpose of the TVA was to bring about:
16 U.S.C. § 831v. To fulfill its charter, the TVA was granted broad "necessary and appropriate" powers. 16 U.S.C. § 831c(g). These powers enabled the TVA to acquire property in the name of the United States from States' residents, including the power of eminent domain, to build dams, create reservoirs, and construct power houses among other things. 16 U.S.C. § 831c(h). As time went on, such powers were also granted the TVA to convey all or any lesser interest in real property by deed, lease, or otherwise, as well as to transfer the possession and control over any such real property to other persons or entities. 16 U.S.C. § 831c(k).
The Indictment in CR-16 alleges the sites where black bear and white tail deer were taken in violation of law were located in Graham County, North Carolina, on land within the NNF. [CR-16 Doc. 1]. The Government has filed in this case [CR-16 Docs. 91-1; 91-2] Forest Service maps depicting the areas within the NNF where the defendants are alleged to have taken wildlife unlawfully. In their written memoranda, and at the hearing held by the Court on May 29, 2014, the defendants argued that the alleged wildlife kill sites in Graham County occurred on three different parcels of land within the NNF and known as: (1) tract "N-1073e," (2) tract "TVA-1," and (3) the TVA land between the 1710-foot contour and the low water mark of the TVA Fontana Lake Reservoir (herein the "Shoreline Strip").
The defendants contend that tract N-1073e, while located entirely within the external boundaries of the NNF, is not property the federal government acquired pursuant to the Weeks Act, and therefore
Given that the federal government's purchase of tract N-1073e complied with the Weeks Act, the legal analysis concerning the federal government's legislative authority of tract N-1073e mirrors that of the Macon County property at issue in case CR-15, discussed above in Part I.C.1. Because the federal government purchased tract N-1073e from Whiting Manufacturing Company, N.C. Gen.Stat. § 104-5 determined the power the federal government received over this parcel as NNF land. Section 104-5 in conjunction with the Enclave Clause, permits the federal government to exercise concurrent jurisdiction with North Carolina over this land provided the federal government accepts such authority. Since tract N-1073e was purchased after February 1, 1940, explicit acceptance of jurisdiction is required. The federal government did so when the Secretary of Agriculture complied with 40 U.S.C. § 3112(b) by mailing a letter to then-Governor of North Carolina, Michael Easley, dated December 30, 2008, accepting concurrent jurisdiction over all land acquired in North Carolina for national forest purposes. [CR-15 Doc. 82-5]. This Court, therefore, has subject matter jurisdiction over the offenses alleged by the Government against the defendants occurring on tract N-1073e.
The facts concerning Tract TVA-1 are more complex. This tract was originally purchased by the federal government in December 1942 to be included within the lands of the TVA. It was part of numerous properties in Graham and Swain Counties that were purchased from the Aluminum Company of America and its subsidiaries Carolina Aluminum Company and Nantahala Power and Light Company (herein collectively "ALCOA"). [CR16 Doc. 105-4]. In September 1946, the TVA Board of Directors authorized the transfer of 5,803 acres of this property to the management of the USDA's Forest Service (which included lands forming tract TVA-1) for inclusion into the NNF. [CR-16 Doc. 105-5
In analyzing what jurisdiction and authority the federal government has over tract TVA-1, it must first be determined whether TVA's transfer to the Forest Service was, in fact, an "acquisition by the United States by purchase or by condemnation. . . for the establishment of . . . a national forest reserve." N.C. Gen.Stat. § 104-5. If it was, then N.C. Gen.Stat. § 104-5 governs the federal government's authority. If not, then N.C. Gen.Stat. § 104-7 governs based on the 1942 acquisition by the TVA on behalf of the United States.
The documentary record makes the answer quite clear. The United States neither purchased nor condemned tract TVA-1 in 1947. It simply effectuated a transfer of authority over the property from one governmental unit to another. There is only one deed to the United States of America: the deed from ALCOA to the United States in December 1942. Hence, N.C. Gen.Stat. § 104-5 is inapplicable and the jurisdictional analysis is governed by N.C. Gen.Stat. § 104-7.
Before addressing how § 104-7 applies, the defendants argue that the land transfer between the TVA and the Forest Service was invalid because the federal government did not advertise the transfer properly or comply with other requirements. Defendants cite to 16 U.S.C. § 516, 43 U.S.C. § 1716, and 36 C.F.R. §§ 254.1 and 254.2 in support of their argument. All of these laws, however, apply only when the federal government exchanges property with another land owner, not when the government internally transfers supervisory authority over property from one department to another. The undisputed record in this case shows that the TVA made a valid transfer of authority over tract TVA-1 to the Forest Service.
The defendants also argue that since North Carolina did not consent to the TVA transferring its lands to the USDA, such transfer is invalid. Defendants, however,
Since the federal government affected a lawful transfer of authoritative control over tract TVA-1 between departments, the Court turns to the legal analysis concerning the federal government's legislative authority over tract TVA-1. At the time the TVA purchased the lands which constitute tract TVA-1, N.C. Gen.Stat. § 104-7 granted the federal government the authority to acquire by purchase, pursuant to the Enclave Clause, "any land in the State required for customhouses, courthouses, post offices, arsenals, or other public buildings whatever, or for any other purposes of the government." Id., emphasis added. Clearly, TVA's acquisition of tract TVA-1 for flood control, power generation, and reforestation, met the requirements of land to be used "for any other purposes of the government." Use as Forest Service land is likewise a proper governmental purpose.
Defendants argue that, even if § 104-7 permitted the TVA to acquire tract TVA-1, the grant of jurisdiction over that tract was never effectuated pursuant to that section. Since tract TVA-1 was acquired by the federal government in 1942, the grant of jurisdiction from the state must be expressly accepted by the federal government for it to be effective. 40 U.S.C. § 3112(b). The federal government did not expressly accept such jurisdiction with regard to TVA-1 until December 30, 2008, when the Secretary of Agriculture wrote to the Governor of North Carolina:
[Doc. 82-5 (emphasis added)].
The version of N.C. Gen.Stat. § 104-7 in effect in 1942 read as follows:
N.C. Gen.Stat. § 104-7 (2002) (emphasis added). In 2005, however, N.C. Gen.Stat. § 104-7 was amended to eliminate the authorization for acquisition and transfer of jurisdiction for "any other purposes of the government." Since this occurred before the federal government accepted jurisdiction over TVA-1, the defendants argue that the 2008 acceptance was ineffective and the federal government therefore has no authority over tract TVA-1.
The defendants' argument is belied by the language of both the old and new versions of N.C. Gen.Stat. § 104-7. The original version of § 104-7 stated that "consent of the State is hereby given . . . to the acquisition . . . of any land," and
As discussed above at footnote 26, the Weeks Act is not the only means by which real property may become part of the National Forest System. The other method is by presidential proclamation. Whether the land is public or private land at the time of its inclusion in the National Forest System determines the procedure. If the land is private, the Weeks Act grants the Secretary of Agriculture (and until 1976 the NFRC) the power to acquire land held by private parties. If, however, the land is already in public hands, Congress grants the President the power to reserve and set aside federal lands for forest purposes pursuant to the Forest Reserve Act and the Forest Management Act.
The TVA purchased tract TVA-1 in accordance with N.C. Gen.Stat. § 104-7 in 1942 and the United States became the fee simple owner of the property at that time. In 1947, the TVA transferred authority and control over tract TVA-1 to the Department of Agriculture as forest land and, in approving the transfer, President Truman also proclaimed that this public land "be allocated to and included in and reserved as a part of the Nantahala National Forest" pursuant to the Forest Reserve Act and the Forest Management Act. [CR-16 Doc. 80 at 5]. The President's proclamation transformed the use to be made of the land: it was originally acquired "for any other purposes of the government" under § 104-7, but was then set aside as lands needed for the establishment of a national forest reserve. Tract TVA-1, having been so reserved by the President in 1947, became subject to the legislative authority of both the federal government and the State of North Carolina upon the filing of the Secretary of Agriculture's general acceptance letter with the North Carolina Governor's office in 2008. Upon the filing of that letter, the federal government became fully vested with concurrent jurisdiction over tract TVA-1. This Court, therefore, has subject-matter
The federal property below the 1710-foot contour and above the low water mark of Fontana Lake—the Shoreline Strip—is still controlled, managed, and administered by the TVA. The Shoreline Strip resides well within the external boundary of the NNF.
As explained in the preceding section regarding tract TVA-1, lands encompassing the Shoreline Strip were originally purchased by the federal government for the benefit of the TVA consistent with the TVA Act. Because they were purchased in the name of the United States "for any [] purposes of the government[,]" these lands were acquired in accordance with N.C. Gen.Stat. § 104-7. When the TVA later transferred tract TVA-1 to the management of the USDA's Forest Service in 1947, it omitted from such transfer the land described herein as the Shoreline Strip, presumably because that strip is occasionally under the water of a TVA reservoir. [CR-16 Doc. 105-5 at 2]. Defendants, therefore, argue that the State of North Carolina never granted concurrent or exclusive jurisdiction to the United States for property acquired by the TVA and lying in the "no man's land" of the Shoreline Strip. The analysis on this issue is almost identical to that pertaining to tract TVA-1, supra, except that the acceptance of jurisdiction was effectuated before the 2005 amendments to N.C. Gen.Stat. § 104-7.
In 1942, the federal government was authorized by the State of North Carolina to acquire the lands that make up the Shoreline Strip, and the State extended a grant of jurisdiction to the federal government over that parcel; the actions of both sovereigns in this regard were fully consistent with N.C. Gen.Stat. § 104-7. The State's grant of jurisdiction, as tendered in 1942, was never revoked by the State and was formally accepted by the federal government
The defendants argue further, however, that the TVA's jurisdiction over the Shoreline Strip says nothing at all about whether the Forest Service can exercise jurisdiction over the same land. But this argument ignores the provisions of the Agreement to Transfer executed between the TVA and the USDA's Forest Service. As explained in the preceding section regarding tract TVA-1, the TVA's transfer of its authority over land including the TVA-1 tract to the Forest Service was consummated by the Agreement of Transfer dated February 24, 1947. [CR-16 Doc. 80]. When the TVA transferred its authority over tract TVA-1 to the Forest Service, it also granted the Forest Service certain powers with regard to the Shoreline Strip. In particular, the TVA granted the Forest Service the right to access and to use the land lying between tract TVA-1 "and the low-water mark on Fontana Lake" for construction and maintenance purposes and for "performing all other acts which may be reasonably necessary to the administration and use, as part of the Nantahala National Forest as herein provided, of the lands described in [tract TVA-1]." [Id. at 2]. While not transferring its authority over the Shoreline Strip to the Forest Service, the TVA clearly granted the Forest Service broad supplemental authority to access the Shoreline Strip for all reasonable purposes necessary to administer and to use tract TVA-1. Enforcing game laws and regulations on the Shoreline Strip to protect wildlife inhabiting tracts N-1073e and TVA-1 clearly falls within the powers granted to the Forest Service by the TVA under this provision of the Agreement of Transfer. This conclusion is unremarkable. When addressing the jurisdiction of the National Park Service under similar
Id., 29 F.3d at 165. The Forest Service possesses broad supplemental authority over the Shoreline Strip to enforce game laws and regulations consistent with its authority over forest lands contained within the external boundary of the NNF. The Court concludes, therefore, that the TVA enjoys concurrent jurisdiction over the Shoreline Strip, and the Forest Service enjoys like jurisdiction over the Shoreline Strip to the extent required for all reasonable purposes necessary to administer and use tract TVA-1, which includes enforcing game laws and regulations on the Shoreline Strip to protect wildlife inhabiting tracts N-1073e and TVA-1. As a result, this Court has subject-matter jurisdiction over the offenses alleged by the Government against the defendants occurring on the federal property lying below the 1710-foot contour and above the low water mark of Fontana Lake controlled, managed, and administered by the TVA.
The final issue confronting the Court is whether the alleged unlawful acts of the defendants fall within the purview of the jurisdictional regulation and statute cited in both Indictments, to wit, 36 C.F.R. § 261.8(a) and 18 U.S.C. § 13. Beginning first with the federal regulation, Part 261.8(a) prohibits, in pertinent part, any hunting in violation of State law which "occurs in the National Forest System or on a National Forest System road or trail." 36 C.F.R. § 261.1(a)(1). The "National Forest System" is defined by 36 C.F.R. § 261.2 as "all national forest lands and waters reserved or withdrawn from the public domain of the United States, [and] national forest lands and waters acquired through purchase, exchange, donation, or other means[.]" Accordingly, 36 C.F.R. § 261.8(a) provides the Court jurisdiction to preside over the unlawful acts alleged to have occurred on the Macon County property at issue in CR-15 as well as the unlawful acts alleged to have occurred on the N-1073e tract at issue in CR-16 since these two properties were acquired through purchase by the United States. A forceful, if not decisive, argument can be made that tract TVA-1 at issue in CR-16 would fall under the National Forest System definition of Part 261.2 since that tract was "reserved or withdrawn from the public domain." However, the reservation of tract TVA-1 as forested land came about after the federal government's purchase of that property for TVA-related purposes, not Forest Service purposes. But, the reservation of that land was also preceded by a transfer of authority and control granted by the TVA to the Forest Service. Any uncertainty about whether the Court has jurisdiction to preside over the unlawful acts alleged to have occurred on tract TVA-1 evaporates, upon closer inspection of the regulations, because 36 C.F.R. § 261.1(a)(2) gives the Court authority to hear any hunting case alleged to violate State law that "affects, threatens, or endangers property of the United States administered by the Forest
The Court's authority to preside over a trial alleging unlawful acts occurring on the Shoreline Strip at issue in CR-16 cannot be sustained under 36 C.F.R. § 261.8(a). That regulation only applies to National Forest System lands, which definition excludes the Shoreline Strip since that property was acquired by the United States for the benefit of the TVA. The Court nevertheless has jurisdiction under 18 U.S.C. § 13. Section 13, commonly referred to as the Assimilated Crimes Act, gives federal courts jurisdiction to hear offenses committed in violation of State law that occur on land "reserved or acquired as provided in section 7 of this title[.]" Section 7(3), in turn, tracks the language of the Enclave Clause thus establishing federal jurisdiction over lands acquired by the federal government consistent with that Clause. Clearly, the TVA's Shoreline Strip is "Enclave" property: the federal government acquired the land pursuant to N.C. Gen.Stat. § 104-7 and accepted concurrent jurisdiction pursuant to 40 U.S.C. § 255 (now 40 U.S.C. § 3112(b)). The Court may properly exercise its jurisdiction to hear the allegations that defendants committed unlawful acts on the Shoreline Strip in Graham County at issue in CR-16.
In sum, the alleged unlawful acts of the defendants fall within the purview of the jurisdictional regulation and statute cited in the indictments and the Court, therefore, has jurisdiction to preside over the trials in these two cases for such offenses.
The defendants' second contention is with regard to the Lacey Act counts in each Indictment. Specifically, the defendants argue that the Government cannot show any allegedly unlawful activities affected interstate or foreign commerce and thus the Court is without subject matter jurisdiction. [CR-15 Doc. 79 at 5; CR-15 Doc. 81 at 4-5 ("the government has failed to produce sufficient evidence to link such acts as an ongoing `inter-state' conspiracy that would give rise to federal jurisdiction")]; [CR-16 Doc. 77 at 4; CR-16 Doc. 78 at 6-7; CR-16 Doc. 86 at 5 (same rationale)]. Without any interstate nexus, the defendants argue, the Court must dismiss these charges. This argument by the defendants requires little discussion.
As relevant here, the grand jury charged the CR-15 defendants in object one of Count One with conspiring
[CR-15 Doc. 1 at 2]. Likewise, in Count Two of CR-15 Indictment, the grand jury alleged as a substantive offense that the defendants
The statutory provision at issue, 16 U.S.C. § 3372(a)(1), makes it unlawful for any "person" to "sell" "wildlife." A "person" is anyone subject to the jurisdiction of the United States. 16 U.S.C. § 3371(e). "Selling" wildlife includes providing guiding, outfitting, or other services for money or other consideration. 16 U.S.C. § 3372(c)(1)(A). "Wildlife" means any wild animal, alive or dead. 16 U.S.C. § 3371(a). The grand jury found probable cause to believe the defendants were present on, or conspired with others to be on, federal land and thus were "persons." Further it found probable cause to believe defendants sold wildlife by providing guiding, outfitting, or other services for money or other consideration with regard to bear hunting. Finally, the grand jury found probable cause to believe defendants' conduct violated 18 U.S.C. § 13, which makes State crimes federal offenses if committed on property subject to federal jurisdiction, here the taking of wildlife in the NNF contrary to North Carolina law because the bear taken was under the State's legal weight limit. No failure of subject matter jurisdiction is present under the first object of the conspiracy alleged in Count One or under the substantive offense alleged in Count Two.
As relevant to the second object of the conspiracy alleged in Count One of the CR-15 Indictment, the grand jury charged the defendants with conspiring
State law. [CR-15 Doc. 1 at 2 (emphasis added)]. The federal basis for jurisdiction on this count is that the wildlife, taken illegally under State law, was thereafter transported in interstate commerce.
The statutory provision at issue here, 16 U.S.C. § 3372(a)(2)(A), contains as a necessary element some effect upon interstate commerce. The grand jury found probable cause to believe that the defendants knew that their customer was from North Carolina, that he possessed only a North Carolina hunting license and thus violated Georgia law when he killed a bear that State, and that he would be returning to North Carolina with the products of the bear he had killed in Georgia. Such allegations, if proven by the Government beyond a reasonable doubt, satisfy § 3372(a)(2)'s "in interstate or foreign commerce" requirement because the harvested game crossed state lines. Accordingly, the defendants' second jurisdictional contention is without merit.
As another pretrial argument, four defendants assert that they were entrapped by the law enforcement officers conducting
Entrapment is an affirmative defense. Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). The defendants herein would be "entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." Matthews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). This affirmative defense places upon a defendant the initial burden of presenting evidence that the government "induced" him to commit the alleged crimes. Jacobson, 503 U.S. at 549, 112 S.Ct. 1535. If a defendant comes forward with such evidence, the burden then shifts to the government to prove beyond a reasonable doubt that the defendant was "predisposed" to commit the alleged crimes. United States v. Sligh, 142 F.3d 761, 762-63 (4th Cir.1998). The affirmative defense of entrapment, if there be any in this case, is factually dependent upon the evidence yet to be introduced at trial. Accordingly, defendants' motions to dismiss based upon entrapment are premature and will be denied without prejudice.
All five defendants contend that the allegedly wrongful conduct by the officers conducting the investigation in these matters was of such magnitude as to deprive them of their constitutional right to due process. [CR-15 Docs. 92, 93; CR-16 Docs. 98, 102, 104]. A constitutional claim based upon outrageous governmental conduct is necessarily fact-bound. United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) ("The law enforcement
Accordingly,
Gerald W. Williams,
William E. Shands,
Harold K. Steen,
Shelly S. Mastran and Nan Lowerre,
The Forest History Society,
Forester Graves' "General Information" can be found at
The Tennessee Valley Authority, "A Complicated Unity," available at
The Tennessee Valley Authority, "From the New Deal to a New Century," available at
