"Federal lands located within states are federal territories under federal jurisdiction."
http://www.constitution.org/juris/fedjur1.htm
Sorry. Some word salad from a right-wing website does not hold water with me.
But we were using somewhat different usage of the word "territory." In the above statement, it is land that is controlled by the Feds, but located within the states. Which is exactly what I said above, and has nothing to do with Guam, PR, USVI.
You right. It was tried in District Court. The appeal failed in the 9th Court of Appeals.
https://www.scribd.com/document/218116757/1998-U-S-Dist-LEXIS-23835
If you read the opinion and then listen/read to some of the lawyers who side, at least in part, with Bundy, it gets interesting.
Arguments from the losing side does not make case law. They lost. I could make the argument that I'm king and shouldn't have to pay taxes (AKA - Bundy's argument about "vested grazing rights" and not paying fees). I'll lose, and I'll be wrong. Just as they are wrong.
Also, Bundy's argument was that only the states could have
jurisdiction inside the state, ie, not the feds on federal land. It was summarily, and thoroughly rejected by the court.
"Bundy argues the federal [*13] government cannothave authority over lands "inside an admitted state." (See Motion to Dismiss (#4), p. 10.) That argument must fail because federal lands located within states are federal territories under federal jurisdiction. The FLPMA provides: The term "public lands" means any landand interest in land owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership, except--(1) lands located on the Outer Continental Shelf; and (2) lands held for the benefit of Indians,Aleuts, and Eskimos"
Here's a quote I found that relates to the argument. Some more good reading, too.
http://www.heritage.org/constitution#!/articles/4/essays/126/property-clause
That's all the time I have today. But should be enough to raise more questions than answers we've seen so far in these trials.
You cherry picked out of the whole article. What he said right above that was this:
The leading modern decision, Kleppe v. New Mexico (1976), reflects a further evolution in judicial understanding, as it in effect embraces the full-blown police-power theory. At issue was the constitutionality of the Wild, Free-Roaming Horses and Burros Act, which prohibits capturing, killing, or harassing wild horses and burros that range on public lands. Writing for the Court, Justice Thurgood Marshall specifically rejected the contention that the Property Clause includes only "(1) the power to dispose of and make incidental rules regarding the use of federal property; and (2) the power to protect federal property." He concluded that "Congress exercises the powers both of a proprietor and of a legislature over the public domain." Thus, without regard to whether wild animals are the property of the United States, or whether the act could be justified as a form of protection of the public lands, Congress was held to have sufficient power under the Property Clause to adopt regulatory legislation protecting wild animals that enter upon federal lands.
And further up:
The broadest conception, which can be called the police-power theory, regards the clause as conferring not only the powers of ownership but also general sovereign authority to regulate private conduct that occurs on federal land or that affects federal land. In default of any federal rule, state law applies. But if Congress determines that a federal rule "respecting" federal land is "needful," it may adopt federal legislation that supersedes state law. Thus, the Property Clause gives Congress the authority to adopt any type of legislation for federal lands, including codes of criminal law, family law, and exemptions from state taxation for persons residing on federal lands.
So, current law is that Congress does have the power to regulate activity on federal lands, and they have done so through the BLM. Bundy challenged that, and lost.
