Federal Property and the Preemption of State Public Trust Doctrines

Cynthia Carlson

Editors' Summary: The public trust doctrine has been the subject of a large and growing body of scholarly analysis. This amorphous legal doctrine, which varies from state to state, generally provides that states hold certain submerged land and tidelands in trust for their citizens. The public trust literature has thoroughly discussed the use of the doctrine in the management of coastal areas. One issue that has not been addressed in detail is the potential preemption of state public trust doctrines in federal property. This Article examines the federal government's capability to preempt state public trust doctrines under the federal property power. The author observes that the resolution of the preemption issue turns on the type of federal property involved. She concludes that state doctrines that conflict with the purpose of special use federal property, such as national parks and wildlife refuges, may be preempted. However, preemption will only occur after a site-specific determination that a particular state public trust doctrine conflicts with a federal property purpose.

Visiting Donner Foundation Scholar, Environmental Sciences Program, University of Massachusetts, Boston, Massachusetts; LL.M., University of Virginia School of Law; J.D., Northwestern School of Law of Lewis and Clark College; B.A., Wellesley College. The author's research has been supported by a grant to the University of Massachusetts, Boston, by the William H. Donner Foundation.

[20 ELR 10003]

Much attention has been paid by the courts and in the literature to state public trust doctrines,¹ particularly to the use of these doctrines in the management of certain coastal and riparian areas. Although states assert ownership over these areas, the federal government owns a portion of these areas as the result of the acquisition of state lands and the subsequent designation of certain types of federal property. The term "federal property" is quite broad and includes national parks, wildlife refuges, and wilderness areas, as well as military installations and federal buildings.

The federal government has the capability to preempt state public trust doctrines through the invocation of the federal navigational servitude. However, it is now apparent that the federal government will not preempt state public trust doctrines in this manner. It is clear, though, that the federal government will invoke its preemptive powers under the Property Clauses to protect federal property and its designated purposes, both on and off federal lands, when necessary. It is through the use of the federal property power that state public trust doctrines may be preempted, either in whole or in part, when activities allowed by such doctrines conflict with or threaten federal property and its purposes. Thus, although hunting may be allowed on state public trust lands, its prohibition in national parks would result in the preemption of state public trust doctrines.

This Article focuses on the federal preemption of state public trust doctrines in the regulation of private activities on federally owned coastal and riparian lands. It begins by reviewing the concept of federal preemption. A broad overview of state public trust doctrines is given as well as an overview of the various types of federal property and their designated uses. The Article then addresses the extent to which the federal government recognizes state public trust responsibilities in the acquisition and management of state public trust lands. The extent to which the federal government must comply with state environmental law on federal lands next is reviewed. Finally, the Article analyzes the federal government's capability to preempt state public trust doctrines under the federal property power in relation to the type of federal property located on state public trust lands.

[20 ELR 10004]

Federal Preemption: Basic Rules

Article VI of the U.S. Constitution provides that "[t]his Constitution, and Laws of the United States which shall be made in Pursuance thereof; and all Treaties made … shall be the supreme law of the Land…."² Known as the Supremacy Clause, this constitutional provision establishes the priority to be granted to federal law, particularly when federal law comes into conflict with state law. Specifically, the Supremacy Clause works as follows: "[S]o long as Congress acts within an area delegated to it, the preemption of conflicting state or local action … flow[s] directly from the substantive source of the congressional action coupled with the [S]upremacy [C]lause of article VI…."³

According to one scholar, "Federal law can preempt nonfederal law at several levels: by constitutional mandate, by federal statute, by agency regulation, and by agency action in a particular case."⁴ It is not surprising that the issue of federal supremacy in general and of federal preemption of state law in particular has arisen in numerous Supreme Court cases. Although there are no hard and fast rules concerning federal preemption of state law, the Court has articulated the following two-part test:

[S]tate law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is preempted. If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.⁵

The application of this two-part test thus is an exercise of statutory construction focusing on the interaction between the federal and state laws at issue.

Federal Occupation of the Field

The first part of the Supreme Court's test concerns the division of regulatory authority between the federal government and the states. Simply put, in a specific regulatory field, "if Congress has validly decided to 'occupy the field' for the federal government, state regulations will be invalidated no matter how well they comport with substantive federal policies."⁶ However, in spite of the assertion of federal regulatory authority in a certain field, federal occupation of the field is not automatically concluded. Rather, Congress must have "persuasive reasons — either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained."⁷

Thus, the focus of the first part of this test becomes whether the field at issue is one that has been traditionally exclusively regulated by the federal government or by the states, or somewhat by each. The "pervasiveness" of the federal regulatory scheme therefore comes into play: only where the federal scheme in a certain field is found to be comprehensive will federal occupation of that field be concluded.⁸ In instances of dual federal-state regulation, the second part of the test becomes important.

Actual Conflict Between Federal and State Law

Due to the proliferation of areas in which both federal and state governments exercise regulatory authority, the second part of the test tends to govern most preemption determinations. Conflicts between federal and state law can be in many forms, ranging from the mere duplication of federal law by state law to the direct contradiction of federal law by state law. However, in order for federal law to preempt state law under this portion of the test, actual conflict must be present.

Tribe has shed some light on what "actual conflict" has come to mean. In general, "the Court will now sanction state regulations that supplement federal efforts so long as compliance with the letter or effectuation of the purpose of the federal enactment is not likely to be significantly impeded by the state law."⁹

Thus, the intent of Congress is the primary criterion in assessing whether federal law preempts state law, whether by means of occupation of the field or by actual conflict. Unless or until such intent is determined, state law remains applicable.¹⁰

Current Trend in Favor of State Regulation

A current trend in preemption analysis is worth noting. On October 26, 1987, President Reagan issued an Executive Order which was designed to clarify the administration's position on the division of powers between federal and state governments.¹¹ Entitled "Federalism," the Order's basic theme was that the powers of the federal government should be used in ways that are limited in scope, while the powers of State governments should be encouraged to expand to the fullest extent possible, as envisioned by the framers of the Constitution.

The Order specifically provides that "[i]n the absence of clear constitutional or statutory authority, the presumption [20 ELR 10005] of sovereignty should rest with the individual States. Uncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level."¹² Federal preemption of state law is to be avoided: "Federal action limiting the policymaking discretion of the States should be taken only where constitutional authority for the action is clear and certain and the national activity is necessitated by the presence of a problem of national scope."¹³ Direction concerning the interpretation of federal statutes is also given:

To the extent permitted by law, Executive departments and agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only when the statute contains an express preemption provision or there is some other firm and palpable evidence compelling the conclusion that the Congress intended preemption of State law, or when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute.¹⁴

Although this Executive Order is labeled as merely "precatory" by one commentator, he nonetheless admits that "its sentiments are clear, and push distinctly if not forcefully in the direction of enhanced state and local powers."¹⁵ This trend toward no preemption of state law has become more and more apparent in many fields involving dual federal-state regulation, including the regulation of federal property.

What the Existence of Federal Property on State Public Trust Lands Means for State Public Trust Doctrines

State Public Trust Doctrines: Definition and Scope

The origins as well as the definition and scope of state public trust doctrines have been discussed at length in the literature.¹⁶ Historically, these common-law doctrines have concerned public rights in navigable waters (both tidal and fresh), their submerged beds, and their foreshore areas.¹⁷ The title to these lands and waters is said to be held "in trust" for the public by the states for certain public uses, which traditionally encompassed navigation, commerce, and fishing.¹⁸

The manner in which the states hold title to such lands and waters was well-described by the Supreme Court in Illinois Central Railroad v. Illinois:

[I]t is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold[s] in the public lands which are open to preemption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.¹⁹

Thus, as trustees, state governments have an ongoing obligation to manage these lands and waters in a way that protects and promotes the public's rights in these areas. In addition, state governments cannot alienate trust lands to private parties without the consent of a state's legislature or take any actions that adversely affect the public's rights in such lands and waters.²⁰

In spite of historical limitations, additional land and water areas as well as new public trust uses have been made subject to state public trust doctrines by state statutes and court decisions. In some states, public trust doctrines now extend to certain inland areas and to nonnavigable waters.²¹ New public trust purposes or uses in some states now include access rights to foreshore areas for recreation and bathing,²² the protection of reserved water rights and instream flows,²³ and the protection of wildlife and ecological values.²⁴

Federal Property: Types and Mandated Uses

Any discussion of federal property must begin with a review of the two main types of federal property as [20 ELR 10006] authorized and distinguished by the U.S. Constitution. With time, however, these constitutional distinctions have disappeared, with federal property of each type being acquired pursuant to one or both property clauses and being collectively referred to as federal property.

Article I Federal Property. Article I of the U.S. Constitution authorizes Congress to "exercise exclusive Legislation in Cases whatsoever … over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings…."²⁵ Known as the Jurisdiction or Enclave Clause, this provision was intended to promote the purchase by the federal government of lands held by the states with their consent for limited purposes. In spite of these restrictions, the Jurisdiction Clause has never been strictly construed by the Supreme Court. Instead, a more expansive interpretation has been used: "For more than a century the Court has held that a compact between a state and the United States which allocates jurisdiction is valid, that federal acquisition need not precisely meet the clause's conditions, and that the uses allowed on federal land may be broader than forts and arsenals."²⁶ As a result, state lands acquired by the federal government under the Jurisdiction Clause have varied dramatically with respect to the legislative jurisdiction reserved by the states and/or acquired by the federal government.

The extent to which state law applies to Article I federal property after such property is acquired should be noted. If the federal government acquires land in a state with its consent, the federal government then would exercise exclusive jurisdiction over the land area so acquired. However, if the federal government acquires land in a state without its consent, a mixture of federal and state law would apply. Specifically, "state law [would govern] the use of federal land much as it would govern use of any other land, except insofar as Congress adopts legislation preempting state regulation, or insofar as state regulation would 'affect the title of the United States or embarrass it in using the lands or interfere with its right of disposal.'"²⁷ In between these two extremes, states can consent to the exercise of federal jurisdiction in certain areas or in relation to designated property uses, while reserving their own jurisdiction in other areas or in relation to any change in property use.

In spite of the literal limitations placed on the Jurisdiction Clause and the manner in which the clause has been used and interpreted, these distinctions regarding state consent to federal jurisdiction are unnecessary. For today, "all of the limitations apparent in the jurisdiction clause and most of the learned pondering over its scope have been rendered irrelevant by the expansion of the property clause in article IV."²⁸

The two principle types of "literal" Article I federal property should be briefly noted. The first type, military installations, includes a broad range of lands and facilities to be used for fortifications, coast defenses, and military training camps. The Secretary of each military department has been authorized by Congress to acquire by condemnation any interest in land needed for such uses.²⁹ The second type, public buildings, also includes a broad range of lands and facilities that may be acquired for post offices, other government offices, and other public uses.³⁰

Article IV Federal Property. Article IV of the U.S. Constitution provides that "[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…."³¹ Article IV federal property refers to what we most commonly think of as constituting federal property held by the federal government. As one commentator has stated, "[t]he [A]rticle IV property clause, by virtue of the generality of its terms, applies to all United States property, even that which comes also under the narrower [A]rticle I property clause."³² Thus, Article IV federal property encompasses property not conveyed to the states but reserved by the United States at the time of statehood as well as property purchased or otherwise acquired³³ by the United States for a specific purpose.

Through its grant of constitutional authority, Congress exercises broad discretion over the acquisition, designation, and use of Article IV federal lands. These lands, designated for many different purposes and managed by several federal agencies, presently comprise about 32 per cent of the total land area of the United States. It is interesting [20 ELR 10007] to note that "[a]bout one half of the federal public land is located in Alaska…. More than 90 [per cent] of federally-owned land outside of Alaska is located in eleven western states."³⁴ (See chart.)

Federal Public Land Acreage (by Agency) (1986)

Acres Owned % of U.S.

Agency (in millions) Land Area

Bureau of Land Management 334.0 14.7

U.S. Forest Service 192.5 8.5

U.S. Fish & Wildlife Service 89.9 4.0

National Park Service 74.9 3.3

Department of Defense 29.1 1.3

Department of the Interior (other) 8.2 0.3

Department of Energy 2.4 0.1

Tennessee Valley Authority 1.0 0.0

TOTAL FEDERAL PUBLIC LANDS 732.0 32.2

STATE & LOCAL PUBLIC LANDS 154.4 6.8

ALL PUBLICLY OWNED LANDS 886.4 39.0

(Source: COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — THE 17TH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 179 (1986).)

[] Federal Power Over Federal Property. Although the federal government has broad authority to regulate federal property, this authority is limited. General regulatory authority, such as for the regulation of wildlife or land use, is held by the states. Federal law will nevertheless preempt state law that conflicts with federal law enacted pursuant to the property power.

The Supreme Court addressed such a preemption issue in Kleppe v. New Mexico.³⁵ The Court was asked to determine whether the federal Wild Free-Roaming Horses and Burros Act was necessary for the regulation of the public lands under the property power, and thus preempted state law in this area. Following precedents in support of an expansive view of Congress' power to regulate the public lands, the Court held that "the 'complete power' that Congress has over public lands necessarily includes the power to regulate and protect wildlife living there."³⁶

The Court noted that the power of the federal government over its lands was similar to, although more limited in scope than, the state's police power. The Court then clarified the relationship between the jurisdiction of the federal government and that of the state on federal lands within the state, concluding that federal law will preempt state law only when a conflict between the two is present:

The Federal Government does not assert exclusive jurisdiction over the public lands in New Mexico, and the State is free to enforce its criminal and civil laws on those lands. But where those state laws conflict with the Wild Free-Roaming Horses and Burros Act, or with other legislation passed pursuant to the Property Clause, the law is clear: the state laws must recede.³⁷

The Court, however, outlined the limited reach of such federal preemption, stating that "[t]he Act does not establish exclusive federal jurisdiction over the public lands in New Mexico; it merely overrides the New Mexico Estray Law insofar as it attempts to regulate federally protected animals. And that is but the necessary consequence of valid legislation under the Property Clause."³⁸

As Kleppe indicates, in spite of the impact of federal preemption, states maintain an important role in the regulation of federal property. Regardless of whether such property is Article I federal property or Article IV federal property and in the absence of state cession of jurisdiction, the federal government regulates federal uses on federal property, with the states regulating state uses on federal property. State law will be preempted only when in actual conflict with federal law enacted pursuant to the property power or other appropriate source of federal authority.

The different types of Article IV federal property should also be described. Instead of using the somewhat artificial Article IV label, however, these types of federal property are more appropriately described according to use. Two use categories result, namely, specific use federal property and multiple use federal property.

*Special Use Federal Property. The three primary types of special use federal property are national parks, wildlife refuges, and wilderness areas. National parks (including national monuments, national recreation areas, national seashores, and related areas) have been established "to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."³⁹ The land comprising each park area has been acquired and designated by act of Congress for a specific purpose.⁴⁰ Managed by the U.S. Department of the Interior's National Park Service, all parks are open to recreation and many other public uses. However, hunting is prohibited in most parks and fishing is subject to certain limitations.⁴¹

Primarily managed by the U.S. Department of the Interior's Fish and Wildlife Service, national wildlife refuges have been established for the conservation of fish and wildlife, including those species threatened with extinction, and their habitats. As in the case of national parks, each refuge [20 ELR 10008] has been acquired and designated by act of Congress for a specific purpose. Certain activities, such as the destruction or taking of wildlife, are prohibited in all refuges, while other activities, such as access and use restrictions, are limited in others.⁴² In general, activities permitted in refuges include public recreation, hunting, and fishing as long as such activities are "compatible with the major purposes for which such areas were established."⁴³ In addition, regulations governing hunting and fishing in refuges, when allowed, are required to be consistent with state fish and wildlife laws to the extent practicable.⁴⁴

Wilderness areas have been established "for the use and enjoyment of the American people in such a manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas [and] the preservation of their wilderness character…."⁴⁵ Again, each wilderness area is designated by act of Congress for a specific purpose. However, instead of acquiring additional federal lands to form such areas, each area is carved from existing federal lands and is managed by the federal agency having jurisdiction over the land prior to its designation as wilderness.⁴⁶ Although multiple uses are allowed in wilderness areas, these uses must be compatible with the purpose of each designation. Some use restrictions, including the use of motorized vehicles, and other limitations, including the prohibition of permanent roads and commercial enterprises, are imposed by statute.⁴⁷

* Multiple Use Federal Property. There are two primary types of multiple use federal property: National Forest System lands managed by the U.S. Department of Agriculture's Forest Service and lands managed by the U.S. Department of the Interior's Bureau of Land Management (BL, lands, which are sometimes called National Resource Lands). Both types of lands, although at times regulating different types of resources, are established for the protection, use, and development of the resources on such lands in accordance with the principles of multiple use and sustained yield.⁴⁸ For each designated area of either type, comprehensive management plans are developed to govern such uses, which generally include recreation, range management, timber production and management, mineral development, watershed protection, and fish and wildlife habitat protection.⁴⁹

*Other Federal Property Interests. In addition to outright ownership of federal property, the federal government holds property interests of several types, including leaseholds and easements. One type of federal easement worth noting is the federal government's easement in the nation's navigable waters and the submerged lands below the ordinary high water mark of such waters, otherwise known as the federal navigational servitude.⁵⁰ Stemming from the Commerce Clause,⁵¹ this power of the federal government (which is in many ways the federal equivalent of state public trust doctrines) is primarily the privilege of the federal government to appropriate private interests in water courses for public use without compensation. The states, through their public trust doctrines, retain authority to regulate waters within their boundaries, but state interests must yield when in conflict with this paramount federal interest.⁵²

Although the federal government through the federal navigational servitude has the capability to preempt state public trust doctrines, preemption has not and most likely will not occur. In the past ten years, the Supreme Court has had the opportunity to rule twice on the respective roles of the federal navigational servitude and state public trust doctrines as well as on related issues of federal supremacy and preemption.⁵³ In noting the limits of the federal navigational [20 ELR 10009] servitude in the first case and the breadth of a state's public trust doctrine in the second, the Court did not discuss preemption but focused instead on the separate, disjunctive characteristics of the federal and state interests.⁵⁴ Therefore, in combining the Court's decisions in these cases, it appears as if the threat of federal preemption by the navigational servitude has been minimized and that the states will "wield maximum power in public trust lands."⁵⁵

Acquisition of State Public Trust Lands by the Federal Government: Destruction or Recognition of State Public Trust Responsibilities?

The issue of the acquisition of state public trust lands by the federal government and subsequent destruction of state public trust interests has rarely been considered by the courts. From the few cases on this subject, the courts are split.

At issue in United States v. 1.58 Acres of Land Situated in the City of Boston, County of Suffolk, Commonwealth of Massachusetts⁵⁶ was whether the U.S. Government could take a parcel of waterfront property in full fee simple for use by the U.S. Coast Guard, thus destroying the state's public trust interests in such property. In recognizing the interests of both federal and state governments in the parcel, the court held that "the United States may obtain full fee simple title to land below the low water mark without destroying the public trust which is administered by both the federal and state sovereigns."⁵⁷

In commenting on "our federal system of dual sovereignty," the court clarified the relationship that exists between federal interests and state interests in state public trust lands. Specifically, the court stated:

This [relationship] recognizes the division of sovereignty between the state and federal governments — those aspects of the public interest in the tideland and the land below the low water mark that relate to the commerce and other powers delegated to the federal government are administered by Congress …, while those aspects of the public interest in this property that relate to non-preempted subjects reserved to local regulation by the states are administered by state legislatures. . . .⁵⁸

In spite of this division of sovereignty, the court recognized that neither the federal government nor the state could destroy the state's public trust interests in order to convey the land free from such interests. The court found that "[t]he trust is of such a nature that it can be held only by the sovereign, and can only be destroyed by the destruction of the sovereign."⁵⁹

Therefore, in finding the issue of the destruction of the public trust to be distinct from that of the conveyance of public trust lands from one sovereign to another, the court held that the federal government can in fact take state public trust lands in full fee simple. However, such a full fee simple status would continue to be subject to the state's public trust interests, because "neither the [state's] nor the federal government's trust responsibilities are destroyed by virtue of this taking."⁶⁰

As in the preceeding case, the issue in the recent case of United States v. 11.037 Acres of Land⁶¹ was whether the condemnation of state-owned tidelands by the United States extinguished state public trust easements in these lands. In recognizing the United States' power of eminent domain to be supreme to the state's public trust interests, the court held that such state interests were in fact extinguished when the United States exercised this power.⁶²

In refusing to follow the reasoning in United States v. 1.58 Acres of Land⁶³ as well as its own precedent set two years earlier in City of Alameda v. Todd Shipyard,⁶⁴ the court stated that it was "bound" by the Supremacy Clause: "Should this Court impress the California public trust easement on the lands acquired by the United States, the federal government's power of eminent domain would become subjugated to the interests of the State. This the Court may not do."⁶⁵

In assessing this split of opinions concerning whether the conveyance of state public trust lands (or other interests therein) to the federal government destroys state public trust responsibilities, both judicial interpretations are founded on sound legal principles and have merit. On the one hand, the concept of dual sovereignty dominates many [20 ELR 10010] aspects of federal land use management so that state public trust responsibilities need not be destroyed upon the conveyance of state public trust lands to the federal government. On the other hand, due to the supreme status accorded to federal law and thus to the federal government's power of eminent domain, easements on state lands governed by state law should not be imposed on the federal government upon the condemnation of such lands.

However, this split of opinions need not be resolved in order to clarify overriding questions of federal supremacy and preemption. More specifically, certain federal property purposes will preempt state public trust doctrine uses regardless of whether state public trust requirements are destroyed by the conveyance or condemnation of state public trust lands to/by the federal government.

The Relationship Between Federal and State Law in the Management of Federal Property Located on State Public Trust Lands

Federal Compliance With State Environmental Laws

Since 1978, federal agencies and facilities have been required to comply with state environmental statutory requirements in the same manner and to the same extent as any private party.⁶⁶ Such compliance is now specifically required by statute. For example, the Federal Water Pollution Control Act provides:

Each department, agency, or instrumentality of the executive branch of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, … shall be subject to, and comply with, all Federal, State, interstate, and local requirements … respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity….⁶⁷

Similar provisions are found in the Clean Air Act,⁶⁸ the Resource Conservation and Recovery Act (RCRA),⁶⁹ the Safe Drinking Water Act (SDWA),⁷⁰ the Toxic Substances Control Act (TSCA),⁷¹ and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).⁷² Although waivers from such state requirements are permitted by federal law, such waivers must be explicit in nature as well as limited in scope.⁷³

In addition to complying with state environmental statutes, federal agencies and facilities must comply with the requirements of state land use planning programs. It is through the process of federal compliance with such state programs that issues of dual federal-state regulation, conflict, and federal preemption have been raised in two recent cases.

In California Coastal Commission v. Granite Rock Co.,⁷⁴ the issues before the Supreme Court concerned whether U.S. Forest Service regulations under the National Forest Management Act, the requirements of the Federal Land Policy and Management Act (FLPMA), and the requirements of the Coastal Zone Management Act (CZMA) preempted the California Coastal Commission's (CCC's) permit requirements for proposed mining activities in a coastal national forest. In evaluating each federal requirement in relation to the CCC permit requirement, the Court found that there was no preemption by the federal statutes and that the state permit was required in order for the proposed mining activities to proceed.

In first evaluating the Forest Service regulations at issue, the Court found no definitive declaration of federal preemption, noting that "the Forest Service regulations … not only are devoid of any expression of intent to pre-empt state law, but rather appear to assume that those submitting plans of operation will comply with state law."⁷⁵ In evaluating FLPMA requirements, the Court found that compliance with state law was also part of FLPMA's regulatory process.

In turning to the alleged conflict between the requirements of the CZMAand the state's CCC permit, the Court focused on the issue of preemption in light of the CZMA's specific exclusion of federal coastal lands from its requirements.⁷⁶ In spite of this exclusion, the Court looked to the legislative history of the Act, finding that Congress did not intend the CZMA to preempt state requirements except in cases of actual conflict.⁷⁷ In finding no actual conflict between the CZMA and the CCC permit, the Court therefore held that the CZMA did not preempt the requirements imposed by the CCC permit. The Court stated, "Because Congress specifically disclaimed any intention to pre-empt pre-existing state authority in the CZMA, we conclude that even if all federal lands are excluded from the CZMA definition of 'coastal zone,' the CZMA does not automatically pre-empt all state regulation of activities on federal lands."⁷⁸

As in Granite Rock, the issue in Friends of the Earth v. United States Navy⁷⁹ was whether the Navy was required to obtain a dredging permit under the State of Washington's Shoreline Management Act (SMA), in addition to other federal and state pollution control permits, before [20 ELR 10011] beginning construction of a homeport facility. The Navy contended that the SMA was not a state water pollution program but a land use law implementing the state's program under the CZMA. The Navy further alleged that its activities would occur on federal lands, lands which were excluded from the coastal zone subject to state management under the CZMA and the SMA.⁸⁰

In citing precedents set by the Washington Supreme Court⁸¹ and by the U.S. Supreme Court in Granite Rock, the Ninth Circuit held that the SMA permit was in fact part of the state's water pollution program and that the regulations of the SMA "apply to the Navy's construction of the Everett homeport, regardless of whether that activity occurs on federal or nonfederal lands."⁸²

Federal Property and the Preemption of State Public Trust Doctrines

Although the states retain jurisdiction over many activities occurring on the federal lands within their borders, the jurisdiction of the federal government will preempt that of the states under certain circumstances. In applying traditional preemption analysis, it is clear that the federal government has not occupied the field in the regulation and management of federal property. Thus, federal preemption will occur only in the case of an actual conflict between applicable federal and state law. Therefore, in assessing whether the jurisdiction of the federal government will preempt that of the states in federal lands that coincide with state public trust lands, the activity in question and the issue of whether state law is in conflict with the federal law governing such activity must be addressed.

As is indicated in the following chart, any conflict between federal property purposes and state public trust uses will occur only in the case of special use federal property. For example, many federal wildlife refuge purposes are consistent with state public trust uses, such as fishing and recreation. However, since wildlife refuges have been established for the conservation of wildlife and for the protection of threatened or endangered species, some refuges may be closed to general public access or otherwise restricted in use. In these instances, state public trust uses and thus state law would be in conflict with federal law, and federal law would prevail by prohibiting the exercise of these state public trust uses.⁸³ Similar conflicts may occur in the case of National Parks and Wilderness Areas. Access and use restrictions, although different in scope, may also occur in the case of military installations and public buildings.

In the case of multiple use lands, no real conflict in general occurs between federal property purposes and state public trust law. Thus, due to the broad range of uses allowed on multiple use federal lands, the distinction between multiple use federal property purposes and state public trust uses disappears.

Federal Property Mission Conflicts With

Public Trust Uses

Military National defense Access; use limits

installations

Public buildings Post offices, etc. Access; use limits

National parks Conservation and Access; hunting/

recreation fishing; use limits

Wildlife refuges Species and habitat Access; hunting/

protection fishing;

recreation;

taking; use limits

Wilderness areas Preservation as Access; use limits;

wilderness use of vehicles

National forests Multiple use/ None

sustained yield

BLM lands Multiple use/ None

sustained yield

Application of Federal Law in State Public Trust Lands Adjacent to Federal Property

In addition to preempting conflicting state law governing public trust uses on special use federal property, federal law will preempt state public trust uses on state public trust lands adjacent to special use federal property when such state uses interfere with special use federal property or its purposes. Stemming from the federal property power, this extension of federal preemptive power to adjacent non-federal areas is supported by precedents set by the Supreme Court in the well-established cases Camfield v. United States⁸⁴ and United States v. Alford,⁸⁵ as well as by Kleppe v. New Mexico.⁸⁶ Several recent cases discuss the reach of the federal property power to state public trust lands outside of federal lands, cases which focus on either the protection of federal property itself or the protection of federal property purposes.

[] The Protection of Federal Property. In United States v. Lindsey, the issue before the Ninth Circuit was whether U.S. Forest Service regulations prohibiting the use of fires in national forests without permits applied in lands below the high-water mark of a river located in the State of Idaho which were adjacent to two national forests.⁸⁷ Relying on [20 ELR 10012] United States v. Alford,⁸⁸ the court found that the fact that the land on which the fire violations occurred was in the State of Idaho did not matter, for "[i]t is well established that [the property] clause grants to the United States power to regulate conduct on non-federal land when reasonably necessary to protect adjacent federal property or navigable waters."⁸⁹

Similarly, in Free Enterprise Canoe Renters Association of Missouri v. Watt,⁹⁰ the issue before the Eight Circuit was whether the National Park Service regulations concerning permits for canoe rental operations inside a National Park unit were also valid in state waters adjacent to the park. In focusing on the need to protect the natural resources of the park as well as the authority of the National Park Service to regulate the use of park waters, the court held that "[i]t is undisputed that the United States acted within its constitutional authority in attempting to regulate the business activities of the … [Canoe Renters] Association as they affect the [park], even though the members themselves may never enter federally owned property…."⁹¹

[] The Protection of Federal Purposes. The issue before the Eight Circuit in United States v. Brown⁹² was whether the federal government had jurisdiction to enforce regulations prohibiting hunting in national parks on waters owned by the State of Minnesota located within the boundary of a national park. The court found that regardless of whether the state had ceded jurisdiction over the waters within the park to the United States when the park was created, the federal regulations prohibiting hunting throughout the park constituted a valid exercise of federal authority under the property power. In focusing on the need to protect park resources as well as purposes, the court held that federal power to protect the public lands "include[s] the authority to regulate activities on non-federal public waters in order to protect wildlife and visitors on the lands."⁹³

Regulations promulgated pursuant to the Wilderness Act⁹⁴ were at issue in Minnesota ex rel. Alexander v. Block.⁹⁵ Specifically, the issue before the Eight Circuit was whether regulations restricting the use of motorboats in a wilderness area extended to adjacent water areas owned by the State of Minnesota. Recognizing that Congress' power to protect public lands "must extend to regulation of conduct on or off the public land that would threaten the designated purpose of federal lands,"⁹⁶ the court found the regulations to be valid in adjacent nonfederal areas as well as appropriate and reasonable for the regulation of a wilderness area.⁹⁷

Conclusions

The federal government has the capability to preempt state public trust doctrines through the use of its power over federal property, specifically, its power over federal property located on state public trust lands. However, this preemptive capability is not broad but is limited to those instances where uses allowed by the state doctrines are in direct conflict with one or more purposes of a special use federal property located on state public trust lands. Multiple use federal property does not have such a preemptive capability in relation to state public trust doctrines.

In addition to being limited in scope, federal preemption will only occur as the result of a site-specific determination of whether a particular state public trust use is in conflict with a federal property purpose. Preemption should be avoided in most cases, although state public trust uses may be preempted either in whole or in part by a restriction imposed in a special use federal property area, such as a national park or wilderness area. In addition, these restrictions may also preempt state public trust uses in areas adjacent to special use federal property areas.

Congress must act explicitly when enacting limited sovereign immunity waivers in federal environmental statutes. Similarly, it must also act explicitly in order to indicate any preemptive intent when designating special use federal property areas located on state public trust lands.

1. Although the public trust doctrine is generally referred to in the singular in the literature, each state's public trust doctrine is unique (territories and possessions of the United States also have public trust doctrines in some form). The variability among state public trust doctrines was noticed as early as 1894 by the Supreme Court in Shively v. Bowlby:

[T]here is no universal and uniform law upon the subject [of title to lands under tide waters]; but that each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considered for the best interests of the public. Great caution, therefore, is necessary in applying precedents in one State to cases arising in another.

152 U.S. 1, 26 (1894). Due to the general as opposed to state-specific reference to such doctrines in this Article, the term will be used in the plural throughout.

2. U.S. CONST. art. VI, § 2.

3. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 376 (1978).

4. Freyfogle, Granite Rock: Institutional Competence and the State Role in Federal Land Planning, 59 U. COLO. L. REV. 475, 476 (1988).

5. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (citations omitted).

6. L. TRIBE, supra note 3, at 384.

7. Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963).

8. L. TRIBE, supra note 3, at 385. However, Tribe notes that "[t]he fact that Congress created a regulatory agency, or delegated regulatory authority to the Executive, in order to carry out its statutory program, is not by itself determinative of the preemption inquiry." Id. at 386.

9. L. TRIBE, supra note 3, at 379.

10. It is important to distinguish the concept of preemption from that of preemptive capability. As Engdahl has explained, "[i]f the capability of preemption is present, preemption will be accomplished if Congress so intends. However, preemptive capability cannot be supplied merely by an intent to preempt." Engdahl, Preemptive Capability of Federal Power, 45 U. COLO. L. REV. 51, 55 (1973).

The concept of preemption should also be distinguished from the doctrine of intergovernmental immunities and that of the negative Commerce Clause. The doctrine of intergovernmental immunities forbids both federal and state governments from interfering with the basic sovereign functions of each other. See, e.g., M'Culloch v. Maryland, 17 U.S. 316 (1819); L. TRIBE, supra note 3, at 391-404. The negative Commerce Clause refers to prohibited state actions (which are limited by the Commerce Clause) which may restrict the flow of interstate commerce. Id. at 320-21.

11. Exec. Order No. 12612, 52 Fed. Reg. 41685 (Oct. 30, 1987), ELR ADMIN. MATERIALS 45035.

12. Id. at § 2(i).

13. Id. at § 3(b).

14. Id. at § 4(a). This section further provides that "[a]ny regulatory preemption of State law shall be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to which the regulations are promulgated." Id. at § 4(c).

15. Freyfogle, supra note 4, at 507.

16. See, e.g., Dunning, The Significance of California's Public Trust Easement for California's Water Rights Law, 14 U.C. DAVIS L. REV. 357 (1980); Huffman, Trusting the Public Interest to Judges: A Comment on the Public Trust Writings of Professors Sax, Wilkinson, Dunning and Johnson, 63 DEN. U.L. REV. 565 (1986); Reed, The Public Trust Doctrine: Is It Amphibious? 1 J. ENVT'L L. & LITIG. (1986); Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970) [hereinafter Sax 1970]; Sax, Liberating the Public Trust From Its Historical Shackles, 14 U.C. DAVIS L. REV. 185 (1980); Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the Public's Environmental Right, 14 U.C. DAVIS L. REV. 195 (1980).

17. W. RODGERS, HANDBOOK ON ENVIRONMENTAL LAW (1977 & Supp. 1984).

18. As the Supreme Court stated in Shively v. Bowlby, "[T]heir natural and primary uses are public in nature, for highways of navigation and commerce, domestic and foreign, and for the purposes of fishing by all…." 152 U.S. 1, 11 (1894).

19. 146 U.S. 387, 452 (1892).

20. See Sax 1970, supra note 16, at 477; see also infra note 59 and accompanying text.

21. See, e.g., Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. DAVIS L. REV. 269 (1980); National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709, 13 ELR 20272, cert. denied, 464 U.S. 977 (1983). These new land and water areas have been the subject of recent debate in both the courts and in the literature. See Phillips Petroleum Co. v. Mississippi, 108 S. Ct. 791, 18 ELR 20483 (1988); Huffman, Phillips Petroleum Co. v. Mississippi: A Hidden Victory for Private Property? 19 ELR 10051 (1989); Kosloff, Phillips Petroleum Co. v. Mississippi: Is the Public Trust Becoming Synonymous with the Public Interest? 18 ELR 10200 (1988). However, this Article restricts its focus to the historical public trust areas of navigable waters, their submerged beds, and foreshore areas.

22. See Matthews v. Bay Head Improvement Assoc., 95 N.J. 306, 471 A.2d 355 (1984); Neptune City v. Avon-by-the-Sea, 61 N.J. 296, 294 A.2d 47 (1972); Fellig, Pursuit of the Public Trust: Beach Access in New Jersey from Neptune v. Avon to Matthews v. BHIA, 10 COLUM. J. ENVTL. L. 35 (1985); Oehme, Judicial Expansion of the Public Trust Doctrine: Creating a Right of Public Access to Florida's Beaches, 3 J. LAND USE & ENVTL. L. 75 (1987); cf. Bell v. Town of Wells, 557 A.2d 168 (D. Me. 1989) (state public trust easement for fishing, fowling, and navigation does not include public recreational use); McDonald v. Halvorson, 308 Or. 340 (Or. 1989) (beach access law applies only to areas that abut the ocean and that historically have been used for public recreation).

23. See Ausness, Water Rights, the Public Trust Doctrine, and the Protection of Instream Uses, 1986 U. ILL. L. REV. 407 (1986); Note, The Public Trust Doctrine as a Source of State Reserved Water Rights, 63 DEN. U.L. REV. 585 (1986); see also Symposium on the Public Trust Doctrine and the Waters of the American West: Yesterday, Today, and Tomorrow, 19 ENVTL. L. 425-723 (1989).

24. See Marks v. Whitney, 491 P.2d 374, 2 ELR 20049 (1971).

25. U.S. CONST. art. I, § 8.

26. Coggins, Evans & Lindberg-Johnson, The Law of Public Rangeland Management I: The Extent and Distribution of Federal Power, 12 ENVTL. L. 535, 569-70 (1982) [hereinafter Coggins]. More specifically, the Supreme Court has interpreted the Jurisdiction Clause to permit states to transfer lands to the federal government subject to state reservation of jurisdiction. See, e.g., James v. Dravo Contracting Co., 302 U.S. 134 (1937), Fort Leavenworth Railroad Co. v. Lowe, 114 U.S. 525 (1885).

27. L. TRIBE, supra note 3, at 255. A major portion of federal lands was acquired as Article I federal property for which state consent was not obtained: "Out of approximately 770 million acres of federally owned lands, the United States holds about ninety-five percent of the area in a proprietary capacity outside the bounds of any form of federal legislative jurisdiction." Shapiro, Coastal Zone Management and Excluded Federal Lands: The Viability of Continued Federalism in the Management of Federal Coastlands, 7 ECOLOGY L.Q. 1011, 1014 n.22 (1979).

28. Coggins, supra note 26, at 570.

29. See 10 U.S.C. § 2663(a).

30. See 40 U.S.C. §§ 601, 602.

31. U.S. CONST. art. IV, § 3. The use of the term "dispose" in this clause may explain why the JurisdictionClause has been used to acquire federal property. According to Coggins, "[T]he historical context of the clause and the assumed intent of the Framers to dispose of all lands have supported a long controversy over whether the clause was intended merely as a transitional measure, allowing Congress to keep the peace while the territories moved toward statehood." Coggins, supra note 26, at 570.

32. Engdahl, State and Federal Power Over Federal Property, 18 ARIZ. L. REV. 283, 358 (1976).

33. All federal property can be acquired by the same means by which private property is acquired, namely, by gift, bequest, devise, or purchase. However, one major distinction between the acquisition of federal property and that of private property is the federal government's power to acquire property by means of eminent domain. According to Engdahl, "[S]ince 1876 it has been settled that Congress can acquire title to property by condemnation in the exercise of a right of eminent domain where the property is needed for the effectuation of one of the constitutionally enumerated federal powers. Even property belonging to a state can be acquired by the exercise of this power." Id. at 359. The federal government's power of eminent domain, also known as the Condemnation Act, is codified at 40 U.S.C. § 257.

34. Baer, The Public Trust Doctrine — A Tool to Make Federal Administrative Agencies Increase Protection of Public Land and Its Resources, 15 B.C. ENVTL. AFF. L. REV. 385, 385 n.1 (1988).

35. 426 U.S. 529, 6 ELR 20545 (1976).

36. Id. at 540-41, 6 ELR at 20547. The Act is codified at 16 U.S.C. § 1331.

37. Id. at 543, 6 ELR at 20548.

38. Id.

39. 16 U.S.C. § 1. The National Park Service manages approximately 337 park system units.

40. Hemmat has noted that prior to 1959, "Congress carved the national parks primarily out of federal domain lands…. [Since 1959] Congress authorized the purchase of predominantly private land to serve as the basis of the park." Hemmat, Parks, People, and Private Property: The National Park Service and Eminent Domain, 16 ENVTL. L. 935, 936 (1986). For example, in 1980, land was acquired for the establishment of the Channel Islands National Park "[i]n order to protect the nationally significant natural, scenic, wildlife, marine, ecological, archaeological, cultural, and scientific values of the Channel Islands…." 16 U.S.C. § 410ff. For the legislative history of the park, see 1980 U.S. CODE CONG. & ADMIN. NEWS 133. For more on the recent acquisition of national park lands, see Blair, The Columbia River Gorge National Scenic Area: The Act, Its Genesis and Legislative History, 17 ENVTL. L. 863 (1987).

41. Hunting is allowed in designated recreational units of the National Park System. See 16 U.S.C. § 16; see also Coggins, Protecting the Wildlife Resources of National Parks from External Threats, 22 LAND & WATER L. REV. 1 (1987). For more on the prohibition of hunting in certain National Park units, see National Rifle Association of America v. Potter, 628 F. Supp. 903, 16 ELR 20356 (D.D.C. 1986); United States v. Brown, 552 F.2d 817, 17 ELR 20366 (8th Cir.), cert. denied, 431 U.S. 949 (1977). For more on fishing limitations, see Organized Fishermen of Florida v. Hodel, 775 F.2d 1544, 16 ELR 20053 (11th Cir. 1985), cert. denied, 106 S. Ct. 2890 (1986).

42. See 16 U.S.C. § 668dd(c). The Fish and Wildlife Service manages approximately 430 wildlife refuges.

43. 16 U.S.C. § 668dd(d)(1)(A).

44. 16 U.S.C. § 668dd(c).

45. 16 U.S.C. § 1131. Wilderness is defined in the Wilderness Act as follows:

[T]hose areas … [that] are untrammeled by man, where man himself is a visitor who does not remain. An area … of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature …; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land …; and (4) may also contain ecological, geological or other … value.

16 U.S.C. § 1131(c).

46. These management agencies generally are the U.S. Forest Service (which manages approximately 32.3 million acres), the Bureau of Land Management (which manages approximately .7 million acres), the National Park Service (which manages approximately 36.8 million acres), and the Fish and Wildlife Service (which manages approximately 19.4 million acres). See 16 U.S.C. § 1131(b); COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY — THE 17TH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY C-113 (1986).

47. 16 U.S.C. § 1133. For more on the management of wilderness areas, see Rohlf & Honnold, Managing the Balances of Nature: The Legal Framework of Wilderness Management, 15 ECOLOGY L.Q. 249 (1988); see also Minnesota ex rel. Alexander v. Block, 600 F.2d 1240 (8th Cir. 1981); infra notes 94-97 and accompanying text.

48. National Forest System lands are governed by the National Forest Management Act, 16 U.S.C. §§ 1600-1614, ELR STAT. NFMA 001-012, while BLM lands are governed by the Federal Land Policy and Management Act, 42 U.S.C. §§ 1701-1784, ELR STAT. FLPMA 001-037.

49. It should be noted that on both types of lands, states retain primary jurisdiction over the management of fish and wildlife. For more on the management of multiple use lands, see Coggins & Ward, The Law of Wildlife Management on the Federal Public Lands, 60 OR. L. REV. 59 (1981); Coggins, supra note 26; Coggins & Lindeberg-Johnson, The Law of Public Rangeland Management II: The Commons and the Taylor Act, 13 ENVTL. L. 1 (1982); Coggins, The Law of Public Rangeland Management III: A Survey of Creeping Regulation at the Periphery, 1934-1982, 13 ENVTL. L. 295 (1982); Coggins, The Law of Public Rangeland Management IV: FLPMA, PRIA, and the Multiple Use Mandate, 14 ENVTL. L. 1 (1983).

50. As Huffman has explained,

[T]he navigation[al] servitude, as the term servitude suggests, is a right in the nature of an easement which is superior to any private rights in the use of water. It is a public right which the national government is responsible for protecting and promoting, and which predates and is superior to the private rights recognized or created by the states.

Huffman, Avoiding the Takings Clause Through the Myth of Public Rights: The Public Trust and Reserved Rights Doctrines at Work, 3 LAND USE & ENVTL. L. 171, 182 (1987).

51. U.S. CONST. art. I, § 8, cl. 3.

52. For more on the scope of the federal navigational servitude, see, e.g., United States v. Rands, 389 U.S. 121 (1967); United States v. Cherokee Nation of Oklahoma, 107 S. Ct. 1487 (1987).

53. See Kaiser Aetna v. United States, 444 U.S. 164, 10 ELR 20042 (1979); Phillips Petroleum Co. v. Mississippi, 108 S. Ct. 791, 18 ELR 20483 (1988).

54. In Kaiser Aetna, the Court first noted the broad reach of the federal navigational servitude in finding that the man-made waterway in question did constitute a "navigable water of the United States" subject to the federal navigational servitude. 444 U.S. at 172. However, the Court also noted certain limitations in the reach of the servitude, namely, that it did not apply to the waterway due to its man-made nature. Id. at 173. For a discussion of these issues, see Comment, Kaiser Aetna: Supreme Court Scuttles Federal Dominion Over Navigable Waters, Unsettles Takings Law, 10 ELR 10028 (1980).

In Phillips Petroleum, the Court focused on the broad reach of the public trust doctrine of the State of Mississippi, finding that state ownership of lands subject to the public trust doctrine included non-navigable as well as navigable tidal lands. 106 S. Ct. at 795. For a discussion of this case, see Huffman, supra note 21; Kosloff, supra note 21.

55. Finnell, Public Access to Coastal Public Property: Judicial Theories and the Taking Issue, 67 N.C.L. REV. 627, 676-77 n.382 (1989).

56. 523 F. Supp. 120 (D. Mass. 1981).

57. Id. at 122.

58. Id. at 123.

59. Id. at 124. The Supreme Court used a similar line of reasoning in Illinois Central Railroad v. Illinois:

The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.

…

The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, … than it can abdicate its police powers in the administration of government and the preservation of the peace.

146 U.S. 387, 453 (1892).

60. 523 F. Supp. at 125. In reaching the same decision, a federal district court in California recently held that the conveyance of tideland by the City of Alameda to the United States was in fee simple subject to the state's public trust doctrine, and that the United States was obligated to hold such lands in trust for navigation and public use. City of Alameda v. Todd Shipyard Corp., 632 F. Supp. 333 (N.D. Cal.), opinion on reconsideration, 635 F. Supp. 1447 (N.D. Cal. 1986).

61. 685 F. Supp. 214 (N.D. Cal. 1988).

62. In citing Pollard's Lessee v. Hagan, 44 U.S. 212 (1845), the court reiterated Pollard's famous message: "But in the hands of the states this power [of eminent domain] can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction which the United States has been invested by the Constitution." 685 F. Supp. at 229.

63. 523 F. Supp. 120.

64. 635 F. Supp. 1447 (N.D. Cal. 1986).

65. 685 F. Supp. at 216.

66. The requirement that federal facilities and activities comply with state environmental laws began in 1978 with the issuance of an Executive Order entitled "Federal Compliance With Pollution Control Standards." Exec. Order No. 12088, 43 Fed. Reg. 47707 (Oct. 17, 1978), ELR ADMIN. MATERIALS 45021; see also ENVIRONMENTAL PROTECTION AGENCY, FEDERAL FACILITIES COMPLIANCE STRATEGY (Nov. 1988).

67. FWPCA § 313(a), 42 U.S.C. § 1323(a), ELR STAT. FWPCA 044.

68. Section 118(a), 42 U.S.C. § 7418(a), ELR STAT. CAA 018.

69. Section 6001, 42 U.S.C. § 6961, ELR STAT. RCRA 032; see also RCRA § 9007, 42 U.S.C. § 6991f, ELR STAT. RCRA 046.

70. Section 1447(a), 42 U.S.C. § 300j-6, ELR STAT. SDWA 019.

71. Section 18, 15 U.S.C. § 2617, ELR STAT. TSCA 027.

72. Section 120, 42 U.S.C. § 9620, ELR STAT. CERCLA 048.

73. For more on such federal waivers, see Breen, Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law, 15 ELR 10326 (1985). It is important to distinguish federal waivers from the federal preemption of state common-law environmental remedies. See, e.g., International Paper Co. v. Ouellette, 479 U.S. 481, 17 ELR 20327 (1987); Hill, Preemption of State Common Law Remedies by Federal Environmental Statutes: International Paper Co. v. Ouellette, 14 ECOLOGY L.Q. 541 (1987).

74. 107 S. Ct. 1419, 17 ELR 20565 (1987).

75. Id. at 1426, 17 ELR at 20566.

76. See CZMA § 304(1), 16 U.S.C. § 1453(1), ELR STAT. CZMA 003; see also Shapiro, supra note 27.

77. See CZMA § 307(e)(1), 16 U.S.C. § 1456(e)(1), ELR STAT. CZMA 011.

78. 107 S. Ct. at 1431, 17 ELR at 20568. For more on Granite Rock, see Fairfax & Cowart, Judicial Nationalism v. Dual Regulation on Public Lands: Granite Rock's Uneasy Compromises, 17 ELR 10276 (1987); Freyfogle, supra note 4; Leshy, Granite Rock and the States' Influence Over Federal Land Use, 18 ENVTL. L. 99 (1987).

79. 841 F.2d 927, 18 ELR 20630 (9th Cir. 1988).

80. Id. at 935, 18 ELR at 20634; see also Shapiro, supra note 27.

81. See Weyerhaeuser Co. v. King County, 91 Wash. 2d 721, 592 P.2d 1108 (1979).

82. 841 F.2d at 936, 18 ELR at 20635.

83. For a conflict between federal law governing a national wildlife refuge and state public trust law, see United States v. Vesterso, 828 F.2d 1234, 18 ELR 20183 (8th Cir. 1987) (state permit allowing the draining of wetlands on federal waterfowl easements conflicts with the purposes of the Wildlife Refuge Act).

84. 167 U.S. 518 (1897). In Camfield, the Court found that regulations prohibiting the enclosure of federal lands applied to the use of fences on adjacent nonfederal lands.

85. 274 U.S. 264 (1927). In upholding a federal statute that prohibited the careless use of fires near public domain lands, the Court reasoned that "[t]he danger depends upon the nearness of the fires not upon the ownership of the land where it is built." Id. at 267.

86. 426 U.S. 529, 6 ELR 20545 (1976). In Kleppe, the Court noted that "[t]he power granted by the Property Clause is broad enough to reach beyond territorial limits." 426 U.S. at 538; see infra notes 35-38 and accompanying text.

It is important to note that the extension of federal power to nonfederal lands does not interfere with areas controlled by the states, and thus does not constitute a violation of the 10th Amendment. According to Holt, such an extension of power "is directed not toward the states, but toward control of private conduct that could affect federal land. Thus, federal regulation is constitutional although it conflicts with state law." Holt, Property Clause Regulation Off Federal Lands: An Analysis and Possible Application to Indian Treaty Rights, 19 ENVTL. L. 295, 300 (1988); see also infra note 10.

87. 595 F.2d 5 (9th Cir. 1979).

88. 274 U.S. 264 (1927).

89. 595 F.2d at 6; see also United States v. Arbo, 691 F.2d 862 (9th Cir. 1982) (the enforcement of federal forestry laws upheld on adjacent state lands).

90. 711 F.2d 852 (8th Cir. 1983).

91. Id. at 855; see also United States v. Carter, 339 F. Supp. 1394 (D. Ariz. 1972) (commercial boat operator in area adjacent to national recreation area required to have a permit for operation in the national recreation area). For more on the protection of nonfederal areas adjacent to National Parks, see Sax, Helpless Giants: The National Parks and the Regulation of Private Lands, 75 MICH. L. REV. 239 (1976), and Holt, supra note 86.

92. 552 F.2d 817 (8th Cir.), cert. denied, 431 U.S. 949 (1977). It is important to note that the Supreme Court did not grant certiorari in this case, the granting of which would have potentially challenged the Court's decision in Kleppe v. New Mexico, 426 U.S. 529, 6 ELR 20545 (1976). The fact that the Court did not grant certiorari here as well as the fact that the other cases discussed in this section have not been appealed attest to the strength of the precedent set by Kleppe. Further, it is evident that "courts exercising judicial review have supported an expansive reading of the Property Clause." 552 F.2d at 822.

93. 552 F.2d at 822; see also Voyageurs National Park Association v. Arnett, 609 F. Supp. 532 (D. Minn. 1985) (federal approval of a state wildlife management plan that permitted trapping in former national park lands ceded back to the State of Minnesota was invalid). For more on the protection of national park purposes in adjacent nonfederal lands, see Coggins, supra note 41.

94. 16 U.S.C. § 1131; see supra notes 45-47 and accompanying text.

95. 660 F.2d 1240 (8th Cir. 1981).

96. Id. at 1249.

97. Specifically, the court found that

[t]he motor use restrictions form only a small part of an elaborate system of regulation considered necessary to preserve the [area] as wilderness…. Congress concluded that motorized vehicles significantly interfered with the use of the wilderness by canoeists, hikers, and skiers and that restricted motorized use would enhance and preserve the wilderness values of the area…. We hold, therefore, that Congress acted within its powers under the Constitution to pass needful regulations respecting public lands.

Id. at 1251. For more on this case, see Gaetke, The Boundary Waters Canoe Area Wilderness Act of 1978: Regulating Nonfederal Property Under the Property Clause, 60 OR. L. REV. 157 (1981).