United States v. Brown, Cr. 5-76-10.

• Decision Date: 04 November 1976
• Docket Number: No. Cr. 5-76-10.,Cr. 5-76-10.
• Citation: 431 F. Supp. 56
• Parties: UNITED STATES of America, Plaintiff, v. Carl E. BROWN, Defendant.
• Court: U.S. District Court — District of Minnesota

431 F. Supp. 56

UNITED STATES of America, Plaintiff, v. Carl E. BROWN, Defendant.

No. Cr. 5-76-10.

United States District Court, D. Minnesota, Fifth Division.

November 4, 1976.

Robert G. Renner, U. S. Atty., Minneapolis, Minn., for plaintiff.

William W. Essling, St. Paul, Minn., for defendant.

Warren Spannaus, Atty. Gen., St. Paul, Minn., for the State of Minnesota, as amicus curiae, by Philip J. Olfelt, Asst. Atty. Gen., and Steven G. Thorne, Sp. Asst. Atty., Gen., Dept. of Natural Resources, St. Paul, Minn.

MEMORANDUM AND ORDER

MILES W. LORD, District Judge.

I. Introduction and Facts

From a judgment of conviction by a United States Magistrate,^* Carl E. Brown has taken a timely appeal to this Court. Rule 8(a) Fed.R.P. for the Trial of Minor Offenses Before United States Magistrates. The review by this Court is the same as an appeal from a judgment of a district court to a court of appeals. Rule 8(d), supra.

Because this is a case testing the jurisdiction of the United States to exercise its authority over the water areas within the boundaries of Voyageurs National Park, there is no dispute concerning the facts which gave rise to this action. On October 7, 1975, Carl E. Brown went duck hunting on a portion of Rainy Lake known as Black Bay in Township 70 North, Range 22 West, Section 12 or 13. His boat was afloat on waters situated within the boundaries of Voyageurs National Park. Specifically, Mr. Brown was cited for violations of National Park Service regulations prohibiting the possession of a loaded firearm and the hunting of wildlife in national parkways. 36 C.F.R. §§ 2.11 and 2.32. Mr. Brown concedes and the Magistrate found that he was hunting ducks and, in fact, shot at a passing duck while the Rangers were issuing a citation to him.

The Magistrate found that the United States, as delegated to the Secretary of the Department of Interior, has jurisdiction over the waters within the Park's boundaries and may enforce National Park Service regulations promulgated under that jurisdictional authority. As a result, Carl E. Brown was found guilty of violating the above referenced sections for which the citation was issued. He was sentenced to pay a fine of $50.00 for violating 36 C.F.R. § 2.11 and $100.00 for violating 36 C.F.R. § 2.32.

At his preliminary hearing, Mr. Brown moved the Magistrate's Court for an order dismissing the action because the United States lacked jurisdiction over the waters situated within the Park. The Magistrate, in a Memorandum accompanying his order denying Brown's motion, indicated the Minnesota Legislature had acquiesced in the jurisdictional authority of the United States over the waters although the United States had not acquired any ownership interest in the beds or surface areas. The Magistrate found that the State was an active participant in the creation of the park and that the activities of the State in passing enabling legislation and otherwise encouraging the development of the Park ". . . can only be consistent with a finding that it intended to cede jurisdiction of the lands within the boundaries of the proposed park to the United States." Magistrate's Memorandum, p. 3, April 26, 1976.

On August 19, 1976, the Court heard oral argument on the issues raised on this appeal. At that time, the State of Minnesota was allowed to participate as amicus curiae because of its avowed sovereign jurisdiction to regulate exclusively the public navigable waters within Voyageurs National Park. A schedule was established for the submission of briefs and the matter was taken under advisement on September 25, 1976.

For the reasons stated below, the Court concludes that the United States does have jurisdiction to regulate the waters in Voyageurs National Park to the extent it is necessary to protect its public lands and to effectuate the purpose for which those lands were acquired and therefore may enforce the regulations prohibiting hunting and the possession of loaded firearms within the park boundaries.

II. Law

The United States argues that it has jurisdiction to regulate the waters within Voyageurs National Park under various constitutional powers including the Property Clause, the Commerce Clause and the treaty power. It further argues that the State of Minnesota offered jurisdiction, subsequently accepted and perfected by the State, in legislation responding to the national act. The State of Minnesota, with whom Carl Brown concurs, disagrees. It takes the position that the treaty power and Commerce Clause have no relationship to legislation establishing this or any national park, that the only constitutional basis for such acts is the Property Clause. Further, Minnesota maintains it never ceded jurisdiction over the waters within the Park's boundaries. As a result, the United States cannot exercise any authority over those waters. Simply stated, Minnesota takes the position that without acquisition of water territory in the Park or absent a cession of jurisdiction from the State, the United States is powerless to extend the jurisdiction of the National Park Service over the waters which are held in trust by the State for the benefit of the citizens of Minnesota.

This Court agrees that Minnesota has not ceded jurisdiction over the waters to the United States. The responding legislation only grants concurrent jurisdiction to the United States over the lands acquired for park purposes by consent of the State. Minn.Stat. § 84B.06 (1971). Therefore, this is not a case where a specific grant of jurisdiction, exclusive or otherwise, has been made over territory not acquired by the United States through purchase, donation or condemnation thereby enabling the United States to enforce its regulations over unowned property. Petersen v. United States, 191 F.2d 154 (9th Cir. 1951).

It is also not legally sufficient to say that because Minnesota concurred with the United States in the purpose for establishing the park it intended to cede jurisdiction over the waters to the national sovereign. Minn.Stat. § 84B.01, subds. 2 and 3 (1971); 16 U.S.C. § 160. Cession statutes are to be strictly construed and it will not be presumed, in the absence of a clearly expressed intent, that a state has relinquished its sovereignty. Six Cos. v. De Vinney, 2 F.Supp. 693, 697 (D.Nev.1933). Assuming an intent from the purpose clause of the Minnesota legislation assumes too much when read with the limited grant of cession in Section 84B.06. Furthermore, this Court cannot assume that retention by the State of jurisdiction over the waters in the Park would be or is incompatible with the purpose of preserving ". . . the outstanding scenery, geologic conditions, and waterway system which constituted a part of the historic route of the voyageurs . . .." Minn.Stat. § 84B.01, subd. 2 (1971). However, this is not to say that the United States lacks authority over the waters absent a specific cession of jurisdiction by the State. The Court merely finds that Minnesota has not ceded jurisdiction to the United States over the waters by a specific legislative act.

The posture of this case is not unique to the long and often difficult history which has characterized the development of Voyageurs National Park. It is only the most recent occurrence in a long series of events which has pitted local sportsmen against the policies of the National Park Service.

When Senate bill 1962 was introduced and analyzed by the Senate Committee on Interior and Insular Affairs, it contained specific provisions allowing waterfowl hunting and trapping in accordance with the applicable state laws. 1970 U.S.Code Cong. and Adm.News pp. 5965, 5972. However, both the Secretary of the Interior and the Secretary of Agriculture objected to such provisions as inconsistent with longstanding objectives and purposes for which national parks are established.

Walter J. Hickel, Secretary of the Interior, stated:

"If an area is to be accorded the dignity and statute sic of designation as a national park, then many ordinary recreational and commercial influences, including hunting and trapping, must be subordinated to the larger achievement of preservation.

While other avenues of national recognition can accommodate such uses, such as a national recreation area, we cannot support the establishment of a national park which includes recreational or commercial hunting and trapping."

1970 U.S.Code Cong. and Adm.News, supra, at p. 5975.

The situation was similar in the House of Representatives. Whether hunting and trapping would be permitted within a National Park was a focal issue and one which received a thorough airing. The State of Minnesota was made well aware of the intentions of the Subcommittee during the testimony of Governor Harold LeVander.

Congressman Roy A. Taylor, Chairman of the Subcommittee on National Parks and Recreation, told the Governor:

"It is out. We are either not going to have a park or we are not sic going to have hunting and fishing. It is just that simple. I mean hunting and commercial fishing are out. Sport fishing, of course, is permitted in national park areas."

Hearings Before the Subcommittee on National Parks and Recreation of the Committee on Interior and Insular Affairs, House of Representatives on H. R. 10482, 91st Cong., 2d Sess., Serial No. 91-10, p. 359 (1970).

Further along in the proceedings, Congressman Morris Udall of Arizona, presented a summation of the Subcommittee's feelings regarding Minnesota's proposal for hunting in Voyageurs National Park.

"It should be very clear to you by now—it is certainly clear to me, based on my judgment of this committee—we certainly are not going to have a national park with hunting. This committee is not going to allow it and this dream of a couple of generations for a Voyageurs Park we have in our grasp this year but it is going to go down the drain if hunting is insisted upon . . .. You can have one of two things this year with regard to Voyageurs. You can have

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