United States v. Holmes

• Decision Date: 14 April 1976
• Docket Number: Crim. No. M-75-0715.
• Citation: 414 F. Supp. 831
• Parties: UNITED STATES of America v. Carol S. HOLMES.
• Court: U.S. District Court — District of Maryland

414 F. Supp. 831

UNITED STATES of America v. Carol S. HOLMES.

Crim. No. M-75-0715.

United States District Court, D. Maryland.

April 14, 1976.

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Jervis S. Finney, U. S. Atty., and Donald H. Feige, Asst. U. S. Atty., Baltimore, Md. and Charlie P. Andrus, Captain, JAGC, Asst. Staff Judge Advocate, Aberdeen Proving Grounds, Md., for plaintiff.

D. Franklin McGinnis, Bel Air, Md., for defendant.

Francis B. Burch, Atty. Gen., State of Maryland, and Warren K. Rich, Asst. Atty. Gen., Dept. of Natural Resources, Annapolis, Md., for State of Md., amicus curiae.

JAMES R. MILLER, Jr., District Judge.

Memorandum and Order

In an information filed on October 17, 1975, the government has charged Carol S. Holmes, defendant, with violation of 18 U.S.C. § 1382¹ in that on or about August 22, 1975, she entered Aberdeen Proving Grounds,² at Chillbury Point, for a purpose prohibited by a lawful regulation, that is, Aberdeen Proving Grounds Regulation 190-4 (APGR 190-4)³ and 33 C.F.R. § 204.30.⁴

Defendant appeared before Magistrate Paul M. Rosenberg on September 4, 1975, and requested trial in the United States District Court. She was arraigned before Magistrate Rosenberg on October 29, 1975, entered a plea of not guilty, and requested a jury trial. The defendant has filed a motion to dismiss the indictment.

It is stipulated between the parties for the purposes of the motion to dismiss that the defendant was located between the high and low water marks on the shores of the Bush River at Chillbury Point in Harford County, Maryland when she was given a citation by the Military Police.

I

The motion to dismiss recites that it is based upon the grounds that the offense "did not occur within the jurisdiction of the United States"; that the "situs of the alleged offense was in the State of Maryland" where defendant's activity was legal; and that the "State of Maryland has retained jurisdiction of its inland waters and has not under treaty or contract ceded the same to the Federal Government by or through the acquisition of the lands occupied by the Aberdeen Proving Grounds."

The State of Maryland has filed an amicus brief in support of the defendant's motion to dismiss in which it argues that the public has a right to go on the Proving Grounds' subaqueous areas which lie below the mean high water mark regardless of who owns legal title to land adjacent thereto. This argument is premised on the State's position that the subaqueous areas are subject to a public trust for fishing and navigation. The State also contends that the United States has not acquired title to the subaqueous areas owned by the State prior to the establishment of the Proving Grounds. The State seems also to assert that the Federal Government does not have legislative jurisdiction under Article 1, § 8, Clause 17 of the United States Constitution, over the subject subaqueous areas as distinguished from title, possession, or ownership thereof.

The State's title argument stands on two legs: (1) that the area now constituting the Proving Grounds was not condemned in accordance with the general Federal condemnation statute, 40 U.S.C. § 257; and (2) that the State of Maryland was not made a party to, nor served with notice of, the condemnation proceeding which did occur pursuant to certain Presidential Proclamations, nor did Maryland ever receive any compensation for the subaqueous land within the perimeters of the Proving Grounds.

The argument which denies the United States legislative jurisdiction is based on the State's contention that legislative jurisdiction over the Proving Grounds, under the general cession statute in effect in 1917 (which according to the State was Chapter 357 of the 1904 Laws Of Maryland, codified in Article 96 § 28 of 1957 Ann.Code of Md.), could only vest with respect to property which the United States acquired through grant or deed from the State. Because there has been no such grant or deed from the State to the Federal Government of the subaqueous areas, the State reasons that the United States has no legislative jurisdiction over them.

II

By its express words, § 1382 applies only to instances in which the unlawful entry occurs ". . . within the jurisdiction of the United States. . . ." While this language is not entirely clear in its meaning, it probably refers to the situs of the geographical areas within which the statute applies rather than to any concept of the particular type of jurisdiction or control which the United States Government exercises over said geographical areas. Lloyd, "Unlawful Entry," 53 Military Law Review, 137, 141 (1971). When, as here, the term "United States" is used in a territorial sense in the federal criminal statutes, it ". . . includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone."⁵ 18 U.S.C. § 5. Beyond doubt, lands and waters in Harford County, Maryland are geographically within the continental area subject to the jurisdiction of the United States and are, therefore, "within the jurisdiction of the United States" for the purposes of § 1382.

The "special maritime and territorial jurisdiction of the United States" is defined in 18 U.S.C. § 7(3) to include "any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort . . . arsenal . . . or other needful building." (Emphasis supplied). This sentence describes two types of places or lands within the "special jurisdiction" of the United States: (1) lands reserved or acquired for the use of the United States and under its exclusive or concurrent jurisdiction and (2) lands acquired by consent of the legislature within which the said lands are located. United States v. Erdos, 474 F.2d 157 (4th Cir. 1973).

Without question, the Aberdeen Proving Grounds were reserved for the use of the United States for the exercise of a legitimate and essential function of the national government, national defense. While it is true that subaqueous lands and waters are not in so many words included within the parameters of 18 U.S.C. § 7(3), it is the lesson of history that the reach of the power of federal jurisdiction will extend, unless expressly or by clear implication excluded by the Constitution or an Act of Congress, to include those matters and things reasonably necessary for the enjoyment of the sovereign powers granted the United States or for the fulfillment of the functions and duties entrusted to it. See e. g. Greer, Commander v. Spock, 424 U.S. 828, at 836, 96 S.Ct. 1211, at 1216-1218, 47 L. Ed.2d 505, at 512-516, 44 L.W. 4380 at 4383 (1976); Fort Leavenworth v. Lowe, 114 U.S. 525, 539, 5 S.Ct. 995, 1002, 29 L.Ed. 264, 269 (1885). Where, as here, the necessities of secrecy and security of a military post reasonably require that waters and subaqueous lands be restricted from access by the general public in order that the national defense function of the military post can be effectively carried out,⁶ Congress, in adopting § 7(3), surely intended that the "special" jurisdiction of the United States would extend to such waters and subaqueous lands to the greatest extent allowed by the Constitution. That Congress intended for § 7(3) to include under the aforesaid circumstances waters and subaqueous lands within the "special" jurisdiction of the United States in cases in which the United States had exclusive or concurrent jurisdiction thereover is demonstrated by the fact that it has specifically authorized the Secretary of the Army to prescribe regulations for ". . . the use and navigation of any portion or area of the navigable waters of the United States . . . endangered or likely to be endangered by Artillery fire in target practice or otherwise, or by the proving operations . . . at any Government ordnance proving ground that may be established . . . on or near such waters. . ." 33 U.S.C. § 3.

III

The arguments of the State and of the defendant have in large part confused and overlooked the important distinction between the acquisition by the Federal Government of title to real property through deed or through the exercise of the power of eminent domain, on the one hand, and the acquisition by it of exclusive legislative jurisdiction over real property on the other.

The exercise of control by the Federal Government over the lands to which it has title in the former case may be termed its territorial jurisdiction, authorized by Article 4, § 3, clause 2 of the Constitution.⁷ Such jurisdiction, for many purposes, may be concurrent with that of the State within the boundaries of which the lands lie, but the State's ". . . jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe in what manner others may acquire rights in them." Utah Power & L. Co. v. United States, 243 U.S. 389 at 404, 37 S.Ct. 387, at 389, 61 L.Ed. 791 at 816 (1917). "The inclusion within a state of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power." (Emphasis supplied). Id at 405, 37 S.Ct. at 389, 61 L.Ed. at 816. See also Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954); Fort Leavenworth R. R. Co. v. Lowe, 114 U.S. 525, 539, 5 S.Ct. 995, 1002, 29 L.Ed. 264, 269 (1885); United States v. Brown, 384 F.Supp. 1151, 1155-1156 (E.D.Mich.1974).

Exclusive legislative jurisdiction, on the other hand, may be exercised by the Federal Government over lands...