                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0111p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         Nos. 02-1386/1461/1570
         v.
                                                     ,
                                                      >
 MARVIN CHARLES GABRION, II,                         -
                           Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                 for the Western District of Michigan at Grand Rapids.
               No. 99-00076—Robert Holmes Bell, Chief District Judge.
                                     Argued: February 28, 2007
                                Decided and Filed: March 14, 2008
               Before: MERRITT, BATCHELDER, and MOORE, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Judy C. Clarke, FEDERAL DEFENDERS OF SAN DIEGO, San Diego, California,
Margaret S. O’Donnell, McNALLY & O’DONNELL, Frankfort, Kentucky, for Appellant. Joan E.
Meyer, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Judy C. Clarke, FEDERAL DEFENDERS OF SAN DIEGO, San Diego, California,
Margaret S. O’Donnell, Kevin M. McNally, McNALLY & O’DONNELL, Frankfort, Kentucky, for
Appellant. Joan E. Meyer, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan,
for Appellee.
        BATCHELDER, J., delivered the opinion of the court. MOORE, J. (pp. 16-32), delivered
a separate opinion concurring in the judgment. MERRITT, J. (pp. 33-42), delivered a separate
dissenting opinion.
                                        _________________
                                            OPINION
                                        _________________
         ALICE M. BATCHELDER, Circuit Judge. In this appeal from a federal criminal conviction,
we are confronted with the precursory issue of whether a district court has subject matter jurisdiction
over a criminal prosecution for murder — the federal statute for which predicates subject matter
jurisdiction on the murder’s having been committed on certain federal property — when the property
in question is within the national forest. The dispositive question is whether certain national forest
land falls within the federal government’s territorial jurisdiction. Because, in this case, it does, the
district court had subject matter jurisdiction over this criminal prosecution.

                                                   1
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                      Page 2


                                                            I.
         On June 3, 1999, the United States Attorney, acting on the finding of the federal grand jury
sitting in the United States District Court for the Western District of Michigan, charged Marvin
Gabrion with committing first degree murder, 18 U.S.C. § 1111(a), at a location within the federal
government’s special maritime   and territorial jurisdiction, 18 U.S.C. § 7(3), which is a capital felony
under 18 U.S.C. § 1111(b).1 The text of the indictment reads, in its entirety:
                  Between on or about June 3, 1997, and on or about July 5, 1997, in the
         County of Newaygo, in the Southern Division of the Western District of Michigan,
         Marvin Charles Gabrion II did, after deliberation, premeditation and malice
         aforethought, willfully kill Rachel Timmerman within the special maritime and
         territorial jurisdiction of the United States by drowning her in Oxford Lake, which
         lies within the Manistee National Forest.
          18 U.S.C. § 1111
          18 U.S.C. § 7
Indictment, Case No. 1:99-CR-76 (W.D. Mich. June 3, 1999).2 The first statute cited in the
indictment, the federal murder statute, provides in pertinent part:
         (a) Murder is the unlawful killing of a human being with malice aforethought.
         Every murder perpetrated by poison, lying in wait, or any other kind of willful,
         deliberate, malicious, and premeditated killing . . . is murder in the first degree.
          ...
         (b) Within the special maritime and territorial jurisdiction of the United States,
         [w]hoever is guilty of murder in the first degree shall be punished by death or by
         imprisonment for life[.]
18 U.S.C. § 1111. Congress has defined the “special maritime and territorial jurisdiction of the
United States” to include “[a]ny lands reserved or acquired for the use of the United States, and
under the exclusive or concurrent jurisdiction thereof.” 18 U.S.C. § 7(3).
       Following a six-day trial, a jury convicted Gabrion as charged and the district court
sentenced him to death. See United States v. Gabrion, No. 1:99-CR-76, 2006 U.S. Dist. LEXIS


         1
          Just to be abundantly clear, this case does not involve any state criminal law. It involves a violation of federal
law, namely 18 U.S.C. § 1111 (murder), meaning that the crime at issue, murder, has been made punishable by an
enactment of Congress, and therefore, the Assimilative Crimes Act, 18 U.S.C. § 13(a), which applies to state-law-based
crimes “not made punishable by any enactment of Congress,” is neither applicable nor relevant.
         2
          On February 14, 2002, the United States Attorney, acting on the finding of the federal grand jury, entered a
“Superseding Indictment,” the text of which reads, in its entirety:
                 Between on or about June 3, 1997, and on or about July 5, 1997, in the County of Newaygo,
        in the Southern Division of the Western District of Michigan, Marvin Charles Gabrion II did, after
        deliberation, premeditation and malice aforethought, willfully kill Rachel Timmerman within the
        special maritime and territorial jurisdiction of the United States, specifically in the Manistee National
        Forest.
         18 U.S.C. § 1111
         18 U.S.C. § 7
Superseding Indictment, Case No. 1:99-CR-76 (W.D. Mich. Feb. 14, 2004). This superceding indictment omitted the
“by drowning her in Oxford Lake” accusation, but did not alter any other aspect of the charge. The present decision,
which involves only subject matter jurisdiction, offers no opinion as to the sufficiency of either indictment.
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                     Page 3


60578 at *1, 2006 WL 2473978 at *1 (W.D. Mich. Aug. 25, 2006) (“Defendant Marvin Gabrion was
convicted of first degree murder within the special maritime and territorial jurisdiction of the United
States, in violation of 18 U.S.C. § 1111 and 18 U.S.C. § 7. The Court imposed a sentence of death
pursuant to 18 U.S.C. § 3594 in accordance with the jury’s recommendation.” (footnote omitted)).
Gabrion   appealed the conviction and his court-appointed appellate counsel asserted 23 claims of
error.3 Gabrion himself, in a pro se supplemental brief, asserted at least three additional claims.
        Upon reviewing the briefs, the panel was intrigued by a “curious issue of jurisdiction” that
had not been addressed by the district court, but had nonetheless been raised on appeal, although
only in footnotes to the appellate briefs. Specifically, Gabrion’s counsel had noted:
         The government never presented any evidence proving that in 1938 when the
         Manistee National Forest was created and then in 1939 when the particular land
         surrounding the southern portion of Oxford Lake was sold to the federal government
         that the government gave proper notice of its acceptance of jurisdiction. Adams v.
         United States, 319 U.S. 312 (1943) (‘Since the government had not accepted
         jurisdiction [of Camp Claiborne, Louisiana in the manner required by the Act of
         October 9, 1940] the federal court had no jurisdiction’ over rape prosecution).
         Gabrion filed several pro se motions relevant to the jurisdiction question. In one, he
         raised the question of whether the federal government, pursuant to 40 U.S.C. § 255,
         had ever properly accepted jurisdiction in 1939 of the land surrounding Oxford Lake
         that became part of the Manistee National Forest. Gabrion tried to argue his pro se
         motions at the jurisdiction evidentiary hearing, but the court would not let him speak.
Appellant’s Final Br. at 24, fn. 20 (Dec. 12, 2005) (brackets in original; record citations omitted).
The government reciprocated with a footnote in its own brief, in which it noted:
         Defendant now argues that the federal government never formally accepted
         jurisdiction over the southern portion of Oxford Lake pursuant to 40 U.S.C. § 255.
         See Adams v. United States, 319 U.S. 312 (1943). Defendant did not litigate this
         issue in the trial court and his own expert conceded federal ownership of the southern
         portion of Oxford Lake at hearing. In any event, 40 U.S.C. § 255 was enacted in
         1940. For lands acquired prior to 1940, federal jurisdiction is presumed. United
         States v. Johnson, 426 F.2d 1112, 1114 (7th Cir.), cert. denied, 400 U.S. 842 (1970);
         Markam v. United States, 215 F.2d 56 (4th Cir. 1954), cert. denied, 348 U.S. 939
         (1955); see also SRA Inc. v. Minnesota, 327 U.S. 558, 563 n.7 (1946). The southern
         portion of Oxford Lake was acquired for the Manistee National Forest in 1939.
Appellee’s Final Br. at 72, fn. 10 (Dec. 5, 2005) (record citations omitted).
        Thus, on our own initiative and prior to argument, we ordered the parties to “further brief
what appears to be a subject matter jurisdiction issue raised for the first time in this case only in
footnote 20 on page 24 of defendant’s opening brief and discussed briefly in the government’s brief
at footnote 10 at page 71.” Order (6th Cir. Mar. 6, 2006). We explained that this “issue arises from
40 U.S.C. § 255[,] which says that the government must first give notice that it is asserting law
enforcement jurisdiction before it displaces the State’s jurisdiction,” and expressed our concern that
the Supreme Court, in Adams, 319 U.S. at 315, “seems to have regarded such notice as a matter of



         3
           The concurrence provides some thoughtful analysis of some of these claims, such as Gabrion’s complaints
regarding due process, equal protection, sufficiency of the evidence, and the jury instructions. But, at this stage of the
proceeding — prior to argument on these issues — a decision or opinion on these issues would be premature.
Nos. 02-1386/1461/1570                     United States v. Gabrion, et al.                                       Page 4


subject matter jurisdiction.” Id. We also issued to the parties six specific questions,4 the answers
to which, we hoped, would assist us in resolving this heretofore unaddressed jurisdictional issue.
      Rather than responding with supplemental briefing, however, the parties filed a “Joint
Motion to Remand for Hearing on Subject Matter Jurisdiction,” in which they explained:
         The exercise of federal prosecutorial power over lands in national forests is
         dependent upon the date and method of land acquisition, and the relevant state
         statute, if any, authorizing that acquisition. After preliminary research, the parties
         jointly ask for a remand to further develop the record. This issue was never litigated
         in the district court so that, beyond establishing the bare minimum of the date the
         land was acquired, the record on appeal does not contain details related to the
         method of acquisition, how the land was acquired and held by the Forest Service, or
         the title history of the particular tract. Moreover, expert testimony may be necessary
         to explain various issues related to land acquisition by the federal government in the
         early 20th century and better inform the Court as to the respective arguments of both
         parties. In addition, although this Court reviews jurisdictional issues de novo, it will
         allow the district court to hear testimony and better inform the Court with further
         development of the record and its own legal analysis of the issue.
Upon consideration of this request, we granted the parties’ motion and instructed the district court
on remand to “hold such further proceedings as it determines are appropriate to fully develop the
record on subject matter jurisdiction.” Order (6th Cir. Apr. 6, 2006).
       On remand, the district court accepted additional briefing and held an evidentiary hearing
to expand the record. At that hearing, Gabrion introduced 24 exhibits and the testimony of three
witnesses, the government introduced nine additional exhibits, and the parties entered a stipulation:
         It is stipulated and agreed between the parties that the United States does not possess
         records of notice filings pursuant to 40 U.S.C. § 255 for the Manistee National
         Forest. In the absence of records reflecting [that] such notice has been given, [] it
         must be conclusively presumed at this time that no jurisdiction was accepted for
         those post February 1, 1940 parcels.
Confronted with this accumulation of evidence and the parties’ revised arguments, the district court
explained: “The parties’ briefings in this Court have gone beyond the limited inquiry into the notice
provisions of 40 U.S.C. § 255. They have focused on the manner in which the United States
acquired the property that comprises the Manistee National Forest, and the United States’ policies


         4
           The six questions we posed to the parties were as follows:
         (1)      Does the government concede that the notice referred to in 40 U.S.C. § 255 has not been
                  filed with respect to the Manistee National Forest?
         (2)      If no notice has been filed establishing jurisdiction, does this Court[,] and [did] the court
                  below[,] have subject matter jurisdiction over this federal capital case?
         (3)      Does Adams v. United States, supra, control the disposition of the issue, or does subsequent
                  legislation or case law from the Supreme Court alter the holding of that case?
         (4)      Does § 255 apply retroactively to interests acquired before enactment of the statute?
         (5)      Does any Michigan statute provide a grant of law enforcement authority to the federal
                  government over Manistee National Forest?
         (6)      Any other information or argument relevant to this issue of jurisdiction?
Order (6th Cir. Mar. 6, 2006).
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                      Page 5


regarding the acquisition of jurisdiction over national forest land.” Gabrion, No. 1:99-CR-76, 2006
U.S. Dist. LEXIS 60578 at *1, 2006 WL 2473978 at *1. From this, the district court drafted an
opinion documenting its findings of fact and, through a methodical analysis in which it addressed
each of Gabrion’s several arguments, rendered conclusions of law, ultimately concluding “that the
United States had [concurrent] jurisdiction to prosecute crimes occurring on the Oxford Lake parcel
of the Manistee National Forest.” Id. at 2006 U.S. Dist. LEXIS 60578 at *31, 2006 WL 2473978
at *10. Consequently, the district court held that it had subject matter jurisdiction over the trial, and
hence, authority to enter the order of conviction and impose the prescribed punishment.
        Gabrion appealed and the parties submitted supplemental briefs on the limited issue of
subject matter jurisdiction. In his supplemental brief to this court, Gabrion explained:
         It was Gabrion’s position on remand and now on appeal that the United States never
         had any jurisdiction, exclusive, concurrent, partial, or otherwise over the Manistee
         National Forest because the federal government’s interest in federal forest lands has
         always, even prior to February 1, 1940 (the date 40 U.S.C. § 255 was enacted), been
         of a proprietorial nature. And, because the United States’ interest in the Manistee
         National Forest is only proprietorial, the District Court did not have subject matter
         jurisdiction to prosecute Marvin Gabrion for the murder of Rachel Timmerman.
Appellant’s Supp. Br. at 2-3 (Feb. 2, 2007). The government responded with 38 pages in support
of its fundamental proposition that “concurrent jurisdiction was ceded to the federal government at
the time of acquisition of the Oxford Lake parcel and it remains to this day.” Appellee’s Supp. Br.
at 2 (Feb. 7, 2007). In his reply brief, Gabrion sought to specify the issues in dispute:
         Marvin Gabrion does not disagree with much of the government’s primer on federal
         jurisdiction setting forth the manner by which the federal government has over the
         course of time obtained jurisdiction over federal land. What Gabrion disagrees with
         the government about is (1) the nature of the jurisdiction offered by the state of
         Michigan and accepted by the federal government in 1923, (2) the interpretation of
         and evidentiary value of the government’s own jurisdictional reports as well as the
         USDA’s legal memoranda, and, (3) the interpretation of 16 U.S.C. § 480.
Appellant’s Supp. Reply Br. at 1 (Feb. 9, 2007) (citations omitted).
        In one sense, then, we are back to the beginning and the issue before us is generally the
same: Section 1111(b) empowers the federal courts to impose punishment for murders committed
“[w]ithin the special maritime and territorial jurisdiction of the United States”; Section 7(3) defines
that “special maritime and territorial jurisdiction” as including “lands reserved or acquired for the
use of the United States, and under the exclusive or concurrent jurisdiction thereof”; and
consequently, the question to be answered is whether the Manistee National Forest is under federal
jurisdiction. But, in another sense, we confront this issue from a new perspective, informed and
educated by the additional record evidence, the district court’s opinion, and the parties’
supplemental briefing. For the reasons that follow, we hold, without regard to the merits of
Gabrion’s overall appeal, that the federal government has concurrent criminal jurisdiction over the
Oxford Lake parcel of the Manistee National      Forest, and therefore, the district court had subject
matter jurisdiction over the prosecution.5


         5
            Before proceeding to the analysis, it is perhaps worth pausing to note that “jurisdiction” — “a word of many,
too many, meanings,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quotation marks and citation
omitted) — has at least three meanings, as used in this opinion: (1) Congress’s legislative jurisdiction; (2) the federal
prosecutor’s adjudicative or prosecutorial jurisdiction, and (3) the federal court’s subject matter jurisdiction. Only the
first of these three — legislative jurisdiction, which “refers to the authority of a [sovereign] to make its law applicable
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                         Page 6


                                                              II.
        There are two provisions in the United States Constitution under which Congress may create
jurisdiction for the federal government to prosecute federal crimes on federal property: the Property
Clause, Art. IV, § 3, cl. 2, and the Federal Enclave Clause, Art. I, § 8, cl. 17.6 The Supreme Court
discussed these two provisions, and their interplay, in Kleppe v. New Mexico, 426 U.S. 529 (1976).
        The Property Clause states: “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.”
U.S. Const., Art. IV, § 3, cl. 2. The Supreme Court has given this Clause an “expansive” reading
and stated, unequivocally, that the federal government “doubtless has a power over its own property
analogous to the police power of the several States.” Kleppe, 426 U.S. at 539-40. “[W]hile the
furthest reaches of the power granted by the Property Clause have not yet been definitively resolved,
[the Supreme Court has] repeatedly observed that the power over the public land thus entrusted to
Congress is without limitations.” Id. at 539 (quotation marks and edits omitted). “In short,
Congress exercises the powers both of a proprietor and of a legislature over the public domain.” Id.
at 540.
        Indeed, Kleppe certainly appears to support — if not stand for — the broad proposition that
the federal government’s rights in federally owned property are never merely those of an ordinary
proprietor, despite the “dicta in two cases to the effect that, unless the State has agreed to the
exercise of federal jurisdiction, Congress’ rights in its land are ‘only the rights of an ordinary
proprietor.’” See Kleppe, 426 U.S. at 538-39 (quoting Ft. Leavenworth R.R. v. Lowe, 114 U.S. 525,
527 (1885), and citing Paul v. United States, 371 U.S. 245, 264 (1963)). That is, even if the federal
government expressly declined a State’s cession of jurisdiction at the time of acquisition, the federal
government would still — under the Property Clause — hold authority beyond that of an ordinary
proprietor. In a piece of analysis particularly pertinent to the present case, the Kleppe Court referred
to Hunt v. United States, 278 U.S. 96 (1928), in which the Court held that Arizona State officials
could not prevent federal officials from killing deer in the Kaibab National Forest:
         Indeed, Hunt . . . [is] inconsistent with the notion that the United States has only the
         rights of an ordinary proprietor with respect to its [national forest] land. An ordinary


to persons or activities,” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813 (1993) (Scalia, J., dissenting) (quotation
marks and citation omitted) — is actually at issue or determinative of this case.
          It is undisputed (and indisputable) that Congress exercised legislative jurisdiction by enacting 18 U.S.C. § 1111,
which makes the commission of murder, within the “special maritime and territorial jurisdiction of the United States,”
a federally punishable offense. “Jurisdiction,” as used in the phrase “special maritime and territorial jurisdiction,”
§ 1111, is certainly a form of subject-matter jurisdiction. And, United States attorneys are authorized to prosecute, 28
U.S.C. § 547(1), and the federal courts authorized to adjudicate, 18 U.S.C. § 3231, violations of federal statute, such as
§ 1111. But, “jurisdiction,” as used in the definition of “special maritime and territorial jurisdiction” — i.e., “lands
reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof,” 18
U.S.C. § 7(3) — certainly is not subject-matter jurisdiction. “Jurisdiction,” as used in the definition of “special maritime
and territorial jurisdiction” in § 7(3) is clearly “legislative jurisdiction,” in the sense that the lands in question are under
“the authority of [the federal government] to make its law applicable to persons or activities [therein].” See Hartford
Fire Ins. Co., 509 U.S. at 813 (Scalia, J., dissenting). The only question, then, is whether Congress had legislative
jurisdiction over the Oxford Lake parcel of the Manistee National Forest, so that § 1111 applies to these circumstances,
and thus triggers the prosecutor’s adjudicative jurisdiction and the federal court’s subject matter jurisdiction.
         6
            Although at least one court, a federal district court, has held that the Commerce Clause empowers Congress
in this regard, see United States v. Griffin, 58 F.2d 674, 675 (W.D. Va. 1932), this proposition is immaterial to this
appeal. It is perhaps worth noting, however, that the mere existence of three separate provisions necessitates that each
provision has some limitation, in order that they coexist. Otherwise, the most vital of them would render the others
essentially lifeless. For this reason, I find it prudent to resolve this issue under the most apposite provision — and
confine this analysis as much as possible to that provision — without treading needlessly on the other provisions.
Nos. 02-1386/1461/1570               United States v. Gabrion, et al.                           Page 7


       proprietor may not, contrary to state law, kill game that is damaging his land, as the
       [Federal] Government did in Hunt[.]
Kleppe, 426 U.S. at 539 n.9; see also id. at 538 (explaining that the Court, in Hunt, had “upheld the
[Federal] Government’s right to kill deer that were damaging foliage in the national forests”).
        The Federal Enclave Clause provides Congress with the power: “To exercise exclusive
Legislation in all 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[.]” U.S. Const., Art. I, § 8, cl. 17. “The Clause has been broadly
construed, and the acquisition by consent or cession of exclusive or partial jurisdiction over
properties for any legitimate governmental purpose beyond those itemized is permissible.” Kleppe,
426 U.S. at 542 n.11 (citing Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 528-30 (1938)).
       The Court, in Kleppe, labeled the powers available under the Federal Enclave Clause
“derivative legislative powers,” id. at 541 (emphasis added), and explained:
       Congress may acquire derivative legislative power from a State pursuant to Art. I,
       § 8, cl. 17, of the Constitution [a.k.a., the Federal Enclave Clause] by consensual
       acquisition of land, or by non-consensual acquisition followed by the State’s
       subsequent cession of legislative authority over the land. In either case, the
       legislative jurisdiction acquired may range from exclusive federal jurisdiction with
       no residual state police power, to concurrent, or partial, federal legislative
       jurisdiction, which may allow the State to exercise certain authority.
Id. at 542 (citing Paul v. United States, 371 U.S. 245, 264-65 (1963); Collins, 304 U.S. at 528-30;
James v. Dravo Contr. Co., 302 U.S. 134, 147-49 (1937); Ft. Leavenworth R.R., 114 U.S. at 541-
42). In reconciling the two Clauses, the Court explained:
       Congress can acquire[, by way of the Federal Enclave Clause,] exclusive or partial
       jurisdiction over lands within a State by the State’s consent or cession[; but,] the
       presence or absence of such [Federal-Enclave-Clause-based] jurisdiction has nothing
       to do with Congress’ powers under the Property Clause. [Unless there is] consent
       or cession[,] a State undoubtedly retains jurisdiction over federal lands within its
       territory, but Congress equally surely retains the power to enact legislation
       respecting those lands pursuant to the Property Clause.
Id. at 542-43 (citations omitted) (clarifying the State of New Mexico’s “confus[ion of] Congress’
derivative legislative powers [under the Federal Enclave Clause], which [we]re not involved in
[Kleppe], with [Congress’] powers under the Property Clause[, which were]”).
        Thus, regardless of any possible questions regarding the “furthest reaches” of the Property
Clause, see id. at 539, the Federal Enclave Clause certainly provides for the federal government to
obtain legislative jurisdiction — “rang[ing] from exclusive federal jurisdiction with no residual state
police power, to concurrent, or partial, federal legislative jurisdiction, which may allow the State
to exercise certain authority” — over land it has acquired “for any legitimate governmental
purpose,” and the extent of the jurisdiction obtained depends on the State’s consent to federal
jurisdiction or cession of its own jurisdiction over that land. See id. at 542. “The terms of the
cession, to the extent that they may lawfully be prescribed, determine the extent of the Federal
jurisdiction.” United States v. Unzeuta, 281 U.S. 138, 142 (1930) (concerning a federal murder
prosecution).
       The facts established at Gabrion’s trial demonstrate that Rachel Timmerman’s body was
found in the southern portion of Oxford Lake, which lies on an 80-acre parcel in the Manistee
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                      Page 8


National Forest. In 1923, the State of Michigan formally consented to the cession of forest lands
to the federal government, provided that the State would retain concurrent criminal jurisdiction over
those lands. See M.C.L.S. §§ 3.401 & 3.402 (Aug. 30, 1923). The parcel in question was deeded
to the federal government on July 11, 1939, for reservation as national forest. Thus, there was
acquisition and cession, and the extent of jurisdiction was described at the time of cession.
                                                           III.
        As was explained at the outset, we interrupted this appeal to raise the issue of subject matter
jurisdiction and — taking a cue from Gabrion’s footnote 20 — we directed our inquiry towards the
effects of 40 U.S.C. § 255 and Adams v. United States, 319 U.S. 312 (1943), as well as other
pertinent authority, such as 16 U.S.C. § 480, a jurisdictional statute peculiar to national forests.
                                                            A.
        Prior to the enactment of 40 U.S.C. § 255 on February 1, 1940, the federal government’s
acceptance of jurisdiction over acquired land was “presumed in the absence of any dissent on [the
federal government’s] part.” See Ft. Leavenworth R.R., 114 U.S. at 528 (justifying the presumption
on the basis that the grant of jurisdiction “conferred a benefit” on the federal government).7
         As such a transfer [of jurisdiction to the federal government] rests upon a grant by
         the State, through consent or cession, it follows, in accordance with familiar
         principles applicable to grants, that the grant may be accepted or declined.
         Acceptance may be presumed in the absence of evidence of a contrary intent, but we
         know of no constitutional principle which compels acceptance by the United States
         of an exclusive jurisdiction contrary to its own conception of its interests.
Silas Mason Co. v. Tax Comm’n, 302 U.S. 186, 207 (1937); see also Humble Pipe Line Co. v.
Waggonner, 376 U.S. 369, 373 (1964) (“It is the established rule that . . . refusal to accept may be
proved by evidence.”); Atkinson v. Tax Comm’n, 303 U.S. 20, 23 (1938); Benson v. United States,
146 U.S. 325, 330 (1892) (“although it did not appear that any application had been made therefor
by the United States, yet, as it conferred a benefit, acceptance of the cession was to be presumed”).
        In the present case, the parcel in question was deeded to the federal government on July 11,
1939, without any expression by the federal government of declination of jurisdiction. “[I]t follows,
in accordance with familiar principles applicable to grants, that . . . [a]cceptance may be presumed
in the absence of evidence of a contrary intent,” Silas Mason, 302 U.S. at 207, because the grant of
jurisdiction “conferred a benefit” on the federal government, Ft. Leavenworth R.R., 114 U.S. at 528.
Under this pre-1940 presumption-of-acceptance approach, the federal government accepted
jurisdiction when it acquired the parcel in 1939 and no further affirmation was necessary.8




         7
            See Gabrion, 2006 U.S. Dist. LEXIS 60578 at *23, 2006 WL 2473978 at *8 (“Defendant does not dispute
the fact that acceptance of jurisdiction was presumed prior to 1940 in the absence of evidence to the contrary.”).
         8
           This parcel was sold to the federal government for inclusion in the Manistee National Forest, which had been
created on the theory that “it would be in the public interest to give such lands, together with certain intermingled public
lands, national-forest status,” Presidential Proclamation, 53 Stat. 2492 (Oct. 25, 1938), thus conferring a benefit.
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                     Page 9


        In 1940, Congress acted to reverse the presumption of acceptance, by amending 40 U.S.C.
§ 2559 to add a new provision: “Unless and until the United States has accepted jurisdiction over
lands hereafter to be acquired10as aforesaid, it shall be conclusively presumed that no such
jurisdiction has been accepted.” See 54 Stat. 19 (Feb. 1, 1940); see also Paul, 371 U.S. at 264-65
(“Since 1940 Congress has required the United States to assent to the transfer of jurisdiction over
the property, however it may be acquired.”). The critical phrase, “hereafter to be acquired,”
establishes, within the context of the statute itself, the existence of the prior, opposite presumption.
         The Supreme Court has indicated that § 255 applies to the national forests. See Adams v.
United States, 319 U.S. 312, 315 n.6 (1943) (“In view of the general applicability of the 1940 Act
[i.e., the provision added to § 255, see fn. 10, supra], it is unnecessary to consider the effect of the
Weeks Forestry Act, 16 U.S.C. 480, and the [State’s] statute dealing with jurisdiction in national
forests [i.e., the state’s ceding statute], . . . even though the land involved here was originally
acquired for forestry purposes.” (emphasis added)). Elsewhere, at least one other court, the Eighth
Circuit Court of Appeals, has applied § 255 to a jurisdictional claim involving a national forest;
specifically, a habeas claim on a capital murder conviction that the State of Missouri lacked criminal
jurisdiction over the Mark Twain National Forest. See Hankins v. Delo, 977 F.2d 396, 398 (8th Cir.
1992) (“Unless the United States accepts jurisdiction over lands ceded by a state by filing a notice
of acceptance with the Governor or in some other manner the state prescribes, it is conclusively
presumed that the United States has not accepted jurisdiction. 40 U.S.C. § 255 (1988).”).11


         9
           Section 255 was renumbered as 40 U.S.C. § 3112, effective Aug. 21, 2002, and this particular provision
restated as § 3112(c): “Presumption. It is conclusively presumed that jurisdiction has not been accepted until the
Government accepts jurisdiction over land as provided in this section.”
         10
              Section 255 was originally codified in 1930, pursuant to 46 Stat. 828, ch. 710 (June 28, 1930) (“An Act To
amend section 355 of the Revised Statutes to permit the Attorney General to accept certificates of title in the purchase
of land by the United States in certain cases.”). In 1940, Congress amended § 255 by deleting a provision that required
the State legislature to consent to the purchase, and adding the provision regarding the presumption against acceptance
(i.e., the provision at issue in this case) as part of a larger paragraph, which states in its entirety:
           Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States
           over lands or interests therein which have been or shall hereafter be acquired by it shall not be
           required; but the head or other authorized officer of any department or independent establishment or
           agency of the Government may, in such cases and at such times as he may deem desirable, accept or
           secure from the State in which any lands or interests therein under his immediate jurisdiction, custody,
           or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore
           obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such
           jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of
           such State or in such manner as may be prescribed by the laws of the State where such lands are
           situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be
           acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.
Act Feb. 1, 1940, 54 Stat. 19, ch. 18. Congress amended § 255 again in October 1940, but did not alter the above
provision. See Act Oct. 9, 1940, 54 Stat. 1803, ch. 793. Thus, the pertinent amendment to § 255 was the addition, on
February 1, 1940, of the statement: “Unless and until the United States has accepted jurisdiction over lands hereafter
to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”
         11
             Hankins, 977 F.2d at 398, is cited here for the proposition that another federal court has applied § 255 to a
national forest, but the ultimate decision in Hankins is inapposite. In Hankins, the petitioner cited the state cession
statute, Mo. Rev. Stat. § 12.020 (ceding all jurisdiction but service of process), and argued “that the state court lacked
jurisdiction because the United States had exclusive jurisdiction.” Id. at 397. The court was unpersuaded and held that
the State had retained jurisdiction, despite its cession statute, because “[t]he parties do not indicate [that] the United
States accepted jurisdiction.” Id. at 398. Thus, the Hankins court invoked § 255 and applied it to the national forest,
but — with little explanation or reasoning — declined to find exclusive federal jurisdiction.
          More importantly, at least for purposes of the present analysis, the Hankins court omitted any consideration of
the pre-1940 presumption of acceptance of jurisdiction or any evidence of when the forest was created. As it turns out,
this omission is critical because the “Mark Twain National Forest was established by Presidential Proclamation on
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                   Page 10


        Finally, as the district court noted, the Department of Agriculture considered the meaning
and effect of the amendment shortly after its enactment. See USDA Op. No. 2979 (Dec. 18, 1940)
(letter from Mastin G. White, USDA Solicitor, to Edward F. Mynatt, USDA Regional Law
Director). After quoting the newly added provision of § 255, the Solicitor began by reciting the
question posed: “You state that the Regional Forester has asked to be advised of the procedure
which must be followed in order to comply with this provision of the statute.” In answer, the
Solicitor explained:
         [W]hereas jurisdiction consented to, or ceded by, a State act was normally presumed
         to have been accepted, the amendment [to § 255] now provides that it shall be
         conclusively presumed that no jurisdiction has been accepted, unless it is
         affirmatively accepted in the manner provided in the amendment. That being the
         case, State laws, such as § 2050 of the South Carolina Code (1932), consenting to the
         acquisition of lands for national forest purposes, as required by Section 7 of the
         Weeks Act (U.S.C., Title 16, § 517) . . . will not result in the acquisition of
         jurisdiction by the Federal Government, unless action is taken to accept such
         jurisdiction, pursuant to the procedure provided in the amendment.
USDA Op. 2979 at 9665 (emphasis omitted; new emphasis added). The Solicitor concluded by
advising that, “[a] copy of this opinion is being sent to the Chief of the Forest Service, so that he
may consider whether there are certain cases in which the Forest Service feels 12
                                                                                that it is desirable to
obtain jurisdiction from the State over lands administered by it.” Id. at 9667.
        Therefore, as a general matter, § 255 and its prior opposite presumption apply to national
forest lands. Several things support this conclusion: the reasoning behind the presumption and its
common application, the Supreme Court’s indication in Adams, the Eighth Circuit’s application of
§ 255 in Hankins, and the USDA’s acknowledgment of § 255’s applicability to national forests.13
                                                           B.
       The national forest concept is somewhat unique among the family of federally owned
properties, but one facet is universal — the parameters of federal ownership depend on
congressional enactment. Congress enacted specific legislation to create the national forests, which




September 11, 1939.” See “History of the Mark Twain National Forest,” available at http://www.fs.fed.us/r9/forests/
marktwain/about/history (last visited Feb. 28, 2008). But, the Hankins court did not acknowledge or explain that § 255
had not been enacted when the forest was created, so there was no impetus for affirmative acceptance, but rather, a
presumption of acceptance. Similarly, the court offered no information as to when the federal government acquired the
particular parcel. Consequently, the analysis is incomplete and reliance on Hankins must be restricted to the proposition
that at least one other federal court has applied § 255 to a national forest (albeit perhaps incorrectly).
         12
            See Gabrion, No. 1:99-CR-76, 2006 U.S. Dist. LEXIS 60578 at *11 n.4, 2006 WL 2473978 at *4 n.4 (“The
Forest Service has also noted that ‘there appears to be concurrent jurisdiction legislation on most National Forest System
lands in Region 9[,] which includes the Manistee National Forest, except for New York.’ (Pl. Ex. 6, U.S.F.S. Eastern
Region Law Enforcement Plan at 27).” (edits omitted)).
         13
            The dissent contends that 16 U.S.C. § 480 is “a specific national forest exception to a more general statutory
rule,” namely, 40 U.S.C. § 255 (currently 40 U.S.C. § 3112). If that were so, it would mean that the exception pre-dated
the rule by almost 43 years: § 480 (the purported exception) was first enacted February 22, 1897, see 30 Stat. 36
(reenacted March 1, 1911, see 36 Stat. 963), almost 43 years before § 255 (the general rule) was enacted on February
1, 1940, see 54 Stat. 19. It is therefore noteworthy that Congress did not include any exceptions to § 255 (e.g., § 480
or any other statute) during the enactment of § 255 in 1940, and has not identified any exceptions in the 67 years since.
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                     Page 11


included 16 U.S.C. § 480, a jurisdictional statute that appeared to have some bearing on the present
case.14
                                                             1.
       The federal government — either the President, pursuant to the Creative Act of 1891, 16
U.S.C. § 471, 26 Stat. 1103, § 24 (Mar. 3, 1891) (repealed Oct. 21, 1976), or the Secretary of
Agriculture, pursuant to the Weeks Act, 16 U.S.C. § 521, 36 Stat. 963, § 11 (Mar. 1, 1911) — has
designated certain federally owned lands as “national forests.” In providing for the designation   of
these national forests, Congress also prescribed the division of state and federal jurisdiction:15
         The jurisdiction, both civil and criminal, over persons within national forests shall
         not be affected or changed by reason of their [i.e., the national forests’] existence,
         except so far as the punishment of offenses against the United States therein is
         concerned; the intent and meaning of this provision being that the State wherein any
         such national forest is situated shall not, by reason of the establishment thereof, lose
         its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or
         be absolved from their duties as citizens of the State.
16 U.S.C. § 480 (codifying the Organic Act, 30 Stat. 36, § 1 (June 4, 1897) (captioned “Civil and
criminal jurisdiction.”); reenacted under the Weeks Act, 36 Stat. 963, § 12 (Mar. 1, 1911) (captioned
“State jurisdiction not affected. Offenses against the United States excepted.”)).
        There is, of course, nothing remarkable about the prospect that our separate systems of
government, state and federal, would each retain jurisdiction to enforce its respective criminal laws
in lands over which both are sovereign. In fact, when considered in its proper context, a provision
for concurrent jurisdiction is perfectly understandable, mainly because national forests, unlike other
federally owned lands, may have people actually residing within their boundaries. The Forest
Reserve provisions of the Organic Act, 30 Stat. 11, 34-36 (June 4, 1897), were drafted with this in
mind, and included statements that addressed many aspects of this habitation, such as rights to
ingress and egress, prospecting, land claims, maintenance of schools and churches, water use, and
— most pertinent here — civil and criminal jurisdiction. Perhaps more to the point, the provision
for civil and criminal jurisdiction, which eventually became 16 U.S.C. § 480, was drafted in light
of the prevailing sentiment of the time: that a traditional federal enclave was effectively “a state
within a state,” see Howard v. Comm’rs of Sinking Fund, 344 U.S. 624, 627 (1953), and its
inhabitants were thus excepted from the benefits of state citizenship, such as the right to file for
marriage or divorce, receive state education, vote or hold office, or “receive any [other] benefits



         14
              The possibility exists that 16 U.S.C. § 480 might not actually apply, based on the facts and circumstances
of this case. A plain reading of § 480 reveals that the broad interpretation used in this opinion might be overly favorable
to Gabrion’s position. Section 480 begins: “The jurisdiction, both civil and criminal, over persons within national
forests shall not be affected or changed by reason of their existence . . .” — “their existence” meaning the existence of
the newly created national forests. But, in this case, the mere “existence” or designation of the national forest did not
change any jurisdiction. The change in jurisdiction — to the extent that there actually was a “change” in jurisdiction
as it is described in this statute — was effectuated by the transfer of title coupled with the State’s ceding of jurisdiction.
           Furthermore, the phrase “persons within the national forest,” as originally enacted, meant “inhabitants” of the
national forest, not merely persons who entered a national forest to commit a murder or dispose of a victim. See
discussion in text, infra. Marvin Gabrion did not live in the Manistee National Forest. Finally, the State of Michigan
did not “lose” any jurisdiction due to “cession.” Therefore, on a strict reading, § 480 may not even apply in this case.
         15
           Although not included expressly, this provision covers tribal jurisdiction as well. See Ute Indian Tribe v.
Utah, 773 F.2d 1087, 1090 (10th Cir. 1985) (en banc) (relying on 16 U.S.C. § 480 to conclude that “Indian jurisdiction
does extend to Indians on forest lands”), abrogated on other grounds by Hagen v. Utah, 510 U.S. 399 (1994).
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                    Page 12


derived from state residency.” See Maj. Stephen E. Castlen & Lt. Col. Gregory O. Block, Exclusive
Federal Legislative Jurisdiction: Get Rid of It!, 154 Mil. L. Rev. 113, 122 (1997).
        In this light, § 480 evinces a focus on the inhabitants of the national forest, rather than the
forests themselves, and when read in its entirety, § 480 reveals a purpose beyond the mere division
of labor between the state and federal systems. The section has two distinct clauses:
         The jurisdiction, both civil and criminal, over persons within national forests shall
         not be affected or changed by reason of their existence, except so far as the
         punishment of offenses against the United States therein is concerned;
and
         [T]he intent and meaning of this provision being that the State wherein any such
         national forest is situated shall not, by reason of the establishment thereof, lose its
         jurisdiction, nor the inhabitants thereof their rights and privileges as citizens [of the
         State], or be absolved from their duties as citizens of the State.
The first clause merely provides — in broad terms — that no State will lose its jurisdiction over
national forest lands merely by virtue of the designation of those lands as national forests, and,
concomitantly, inhabitants of lands that have been thus designated will continue to have the rights,
privileges, and duties of citizens of the State in which the national forest lands are located. The
second clause simply clarifies and reinforces this reading of the first clause.
        An argument could be made that § 480 categorically rejects any federal jurisdiction over the
national forests — by reading the first clause as saying that federal jurisdiction shall not be affected
or changed (i.e., by adding the word “federal” to the first clause), and construing this      to mean that
the preexisting absence of federal jurisdiction shall not be affected or changed.16 But, such an
interpretation is simply not plausible because of the second clause, which expressly clarifies that:
“the intent and meaning of this provision being that the State . . . shall not . . . lose its jurisdiction”
(emphasis added). In short, § 480 provides that the designation of land by the United States as a
national forest does not — without something more — deprive the inhabitants of that land of their
rights as state citizens, but neither does this protection prevent the United States from exercising
jurisdiction over congressionally enacted federal crimes committed on that land.
        This statute first appeared in the Organic Act of 1897, which was “Congress’ answer to the[]
continuing problems” with the then six-year-old national-forest concept, not the least of which was
the “rampant” and “indiscriminate” reservation of millions of acres of “generally settled” forest land,
and the apprehension that such reservation “might prove disastrous to the settlers living on or near
these lands.” United States v. New Mexico, 438 U.S. 696, 705-06 (1978) (quotation17marks, citations,
and footnotes omitted) (recounting the origins of the national forest legislation). Recall that the

         16
            Of course, for even this stand-alone interpretation of this first clause to be both plausible and sensible, the
exception at the end of the clause (“except so far as the punishment of offenses against the United States therein is
concerned”) must mean something other than what it plainly says — i.e., it would be nonsensical to say that § 480
categorically rejects any federal criminal jurisdiction except for jurisdiction over federal crimes. Consequently, the
dissent construes the phrase “offenses against the United States” as meaning only certain federal crimes of nationwide
application. But, as discussed in the text, infra, that construction is insupportable and incorrect.
         17
              The Supreme Court documented this history in United States v. New Mexico, 438 U.S. 696 (1978),
explaining:
                  In the mid and late 1800’s, many of the forests on the public domain were ravaged and the
         fear arose that the forest lands might soon disappear, leaving the United States with a shortage both
         of timber and of watersheds with which to encourage stream flows while preventing floods. It was
Nos. 02-1386/1461/1570                     United States v. Gabrion, et al.                                    Page 13


sentiment of the time was that a “federal enclave” was considered a “state within a state,” so the
birth of this new national-forest-type federal enclave — coupled with the “rampant” and
“indiscriminate” reservation of lands as national forests, if national forests were to be considered
traditional federal enclaves — presaged an expectation that this national-forest concept might
incidentally remove a substantial amount of territory (and the inhabitants therein) from the
governance of the States, and correspondingly deny those inhabitants the associated benefits and
burdens of State citizenship.
        In this context, § 480’s first clause clearly addresses these implications — i.e., the birth of
this new type of vast federal enclave within the territorial boundaries of the State — and ensures that
the mere change in ownership (from privately-owned or State-owned to federally-owned) and
designation (as the “national forest” variety of federal enclave) does not result in exclusive federal
jurisdiction over these lands. Specifically, the federal government could prosecute federal offenses
committed on these newly owned, newly designated, newly established national forest lands, see
infra, but nothing else changed; the inhabitants were not excepted from the benefits or burdens of
State citizenship and the State was not prevented from exercising its own jurisdiction, just as it
would have done prior to the transition. The second clause simply clarifies this view.
                                                          2.
        The second important aspect of § 480 is the exception for “offenses against the United
States.” “It has long been established that the words ‘offense against the United States’ encompass
all offenses against the laws of the United States, not just offenses directed at the United States as
target or victim.” United States v. Gibson, 881 F.2d 318, 321 (6th Cir. 1989) (citing Radin v. United
States, 189 F. 568, 571-72 (2d Cir. 1911); Thomas v. United States, 156 F. 897, 900-01 (8th Cir.
1907)); accord Cotton v. United States, 52 U.S. 229, 231 (1850) (explaining that offenses against
the United States are those which are defined by congressional statute); United States v. Gill, 204
F.2d 740, 742 (7th Cir. 1953) (reasoning that Congress, when enacting Title 18, meant “crimes
against the United States” to mean “offenses which Congress had defined and for which Congress
had fixed a penalty”); cf. 18 U.S.C. § 3231 (“The district courts of the United States shall have
original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the
United States.”); 28 U.S.C. § 547(1) (“each United States attorney, within his district, shall - -
prosecute for all offenses against the United States”); U.S. Const., Art. II, § 2, cl. 1 (the President
has the “Power to grant Reprieves and Pardons for Offenses against the United States”).


        in answer to these fears that in 1891 Congress authorized the President to ‘set apart and reserve, . . .
        any State or Territory having public land bearing forests, in any part of the public lands wholly or in
        part covered with timber or undergrowth, whether of commercial value or not, as public reservations.’
        Creative Act of Mar. 3, 1891, § 24, 26 Stat. 1103, as amended, 16 U.S.C. § 471 (repealed 1976).
                  The Creative Act of 1891 unfortunately did not solve the forest problems of the expanding
        Nation. To the dismay of the conservationists, the new national forests were not adequately attended
        and regulated; fires and indiscriminate timber cutting continued their toll. To the anguish of Western
        settlers, reservations were frequently made indiscriminately. President Cleveland, in particular,
        responded to pleas of conservationists for greater protective measures by reserving some 21 million
        acres of ‘generally settled’ forest land on February 22, 1897. President Cleveland’s action drew
        immediate and strong protest from Western Congressmen who felt that the ‘hasty and ill considered’
        reservation might prove disastrous to the settlers living on or near these lands.
                  Congress’ answer to these continuing problems was three-fold. It suspended the President’s
        Executive Order of February 22, 1897; it carefully defined the purposes for which national forests
        could in the future be reserved; and it provided a charter for forest management and economic uses
        within the forests. Organic Administration Act of June 4, 1897, 30 Stat. 34, 16 U.S.C. § 473 et seq.
Id. at 705-06 (footnotes omitted); see also id. at 706 n. 13 (“A major complaint of the Western Congressmen was that
rampant reserving of forest lands by the United States might leave ‘no opportunity there for further enlargement of
civilization by the establishment of agriculture or mining.’ 30 Cong. Rec. 1281 (1897) (Sen. Cannon).”).
Nos. 02-1386/1461/1570                United States v. Gabrion, et al.                          Page 14


        By virtue of its own express exception, § 480 does not bar the federal government from
obtaining jurisdiction over the prosecution of offenses against the United States. The violation of
a federal statute in this case, namely 18 U.S.C. § 1111, is an offense against the United States.
Therefore, even if this prosecution “affected or changed” the jurisdictional status quo, such effect
or change is expressly allowed by the statute. Section 480 simply cannot be read as preventing the
federal government from prosecuting federal offenses committed in the national forest.
                                                   3.
        Finally, 16 U.S.C. § 480 is commonly understood as allowing concurrent jurisdiction over
the national forests. United States v. Fields, -- F.3d --, No. 05-7128, slip op. at 15, 2008 U.S. App.
LEXIS 4018 at *19-20, 2008 WL 483281 at *6 (10th Cir. Feb. 25, 2008); see also, e.g., United
States v. California, 655 F.2d 914, 919 (9th Cir. 1980) (citing § 480 for the proposition that
“Congress has determined that the states shall maintain concurrent criminal and civil jurisdiction
over national forests”); United States v. Raffield, 82 F.3d 611, 613 (4th Cir. 1996) (holding that
§ 480 “does not in any way preclude state and federal governments from entering into a relationship
of concurrent jurisdiction”); cf United States v. Avants, 367 F.3d 433, 440 (5th Cir. 2004) (upholding
federal jurisdiction and affirming a federal conviction for a murder committed in the Homochitto
National Forest, despite the defendant’s acquittal in state court, albeit without reference to or
consideration of § 480); United States v. Jackson, 327 F.3d 273, 281 (4th Cir. 2003) (upholding
federal jurisdiction and conviction for a murder committed in the Pisgah National Forest, despite
the defendant’s conviction for the same crime in state court, albeit without reference to § 480).
        “By this enactment Congress in effect has declined to accept exclusive legislative jurisdiction
over forest reserve lands, and expressly provided that the state shall not lose its jurisdiction in this
respect nor the inhabitants ‘be absolved from their duties as citizens of the State.’” Wilson v. Cook,
327 U.S. 474, 487 (1946) (emphasis added). The Court did not say that Congress declined to accept
any jurisdiction, nor did it say that Congress declined to accept any change in jurisdiction. The
Court simply said that Congress did not want federal jurisdiction to be exclusive. See also United
States v. County of Fresno, 429 U.S. 452, 455 (1977) (noting that “[p]ursuant to 16 U.S.C. § 480,
the States retain civil and criminal jurisdiction over the national forests notwithstanding the fact that
the national forests are owned by the Federal Government”). Concurrent jurisdiction is fine.
        Indeed, a majority of this court has at least tacitly endorsed the idea that § 480 provides for
concurrent jurisdiction. See Stupak-Thrall v. United States, 70 F.3d 881, 888 (6th Cir. 1995),
vacated on grant of reh’g en banc, 81 F.3d 651 (6th Cir. 1996) (Moore, J., writing, joined by Nelson
and Brown, JJ.) (“Section 480 merely provides that both the state and the United States shall have
general concurrent jurisdiction over individual citizens in forest areas.”); Stupak-Thrall v. United
States, 89 F.3d 1269, 1271 (6th Cir. 1996) (aff’g without opinion by an equally divided en banc
court) (Moore, J., concurring, joined by Merritt, C.J., and Daughtrey, J.) (“I would adhere to the
panel opinion in its entirety, and I incorporate it herein by reference.”); id. at 1284 n.18 (Boggs, J.,
dissenting, joined by Norris, Suhrheinrich, and Batchelder, JJ.) (acknowledging, and agreeing with,
the concurrence’s opinion that “§ 480 does provide for concurrent federal-state jurisdiction”).
                                                   C.
        Congress has established a specific procedure by which the Secretary of Agriculture can
relinquish federal jurisdiction over national forest lands: by either (1) filing a notice of
relinquishment with the Governor of the State, to take effect upon acceptance, or (2) taking such
action towards relinquishment “as the laws of the State may otherwise provide.” See 7 U.S.C.
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                     Page 15


§ 2268. There is no evidence of such relinquishment in the present case. The letters18     and reports
entered into the record fall well short of this procedure, and are therefore insufficient.
                                                            IV.
         In 1923, the State of Michigan formally consented to the cession of its forest lands to the
federal government, expressly reserving concurrent criminal jurisdiction over those lands. See
M.C.L.S. §§ 3.401-02. An 80-acre parcel containing the southern portion of Oxford Lake was
deeded to the federal government on July 11, 1939, and is currently part of the Manistee National
Forest. There was federal acquisition and state consent, and the extent of jurisdiction was described
at the time of consent. Because this transfer occurred prior to 1940, acceptance of jurisdiction was
presumed. Congress has not acted to retrocede jurisdiction back to the State of Michigan.
         Rachel Timmerman was found murdered on this parcel of the Manistee National Forest on
July 5, 1997, and the federal government indicted, prosecuted, and convicted Marvin Gabrion for
this crime. The federal government had concurrent legislative jurisdiction over the Manistee
National Forest in accordance with Art. I, § 8, cl. 17, and hence, territorial jurisdiction over the
prosecution of this crime, in accordance with 18 U.S.C. § 7(3). To the extent that the federal
government’s acquisition of this land, coupled with Michigan’s cession of concurrent jurisdiction,
somehow “affected or changed” the jurisdictional status of the Manistee National Forest, the federal
government prosecuted Gabrion for an “offense against the United States,” and was thus nonetheless
in compliance with 16 U.S.C. § 480. The grand jury charged Gabrion with murder under federal
statute, 18 U.S.C. § 1111, committed within federal territorial jurisdiction, § 7(3). After the petit
jury convicted him on that charge, the court sentenced him to death pursuant to federal statute,
§ 3594. Both the federal prosecutor and the federal district court had jurisdiction.
                                                             V.
        Based on the foregoing, the district court was correct in both its analysis and its conclusion
on the issue of federal jurisdiction. Therefore, we AFFIRM the district court’s finding that it had
subject matter jurisdiction over Gabrion’s trial, and correspondingly, authority to enter an order of
conviction and impose punishment. Consequently, we will set a date to hear argument on the merits
of Gabrion’s appeal and his 25 remaining claims of error.




         18
             The dissent cites five administrative-agency or executive-branch opinions, all of which demonstrate a
preference against federal jurisdiction on national forest lands, but all of which also concede that some national forest
areas nonetheless exist under either exclusive or concurrent federal jurisdiction. The dissent fails to explain the existence
of these areas or reconcile their existence with its theory that “§ 480 negates and prohibits the exercise of either exclusive
or concurrent federal jurisdiction.” Under the dissent’s theory, these areas could not legally exist.
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                   Page 16


                            _________________________________________
                                CONCURRING IN THE JUDGMENT
                            _________________________________________
        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in the
judgment of the lead opinion and write separately because my analysis differs in some respects and
because I believe we are obligated to respond to additional arguments made by Gabrion that the lead
opinion does not address. The questions whether the federal government has jurisdiction to
prosecute Marvin Gabrion (“Gabrion”) and whether the U.S. District Court for the Western District
of Michigan has jurisdiction over the trial are exceedingly complex ones. I believe that, although
this case involves particularly thorny issues of Constitutional and statutory interpretation, a careful
review of precedent yields the clear conclusion that 16 U.S.C. § 480 does not preclude Congress
from accepting concurrent legislative jurisdiction over the national forests. Where such concurrent
legislative jurisdiction exists, the federal courts have subject-matter jurisdiction over federal
prosecutions pursuant to 18 U.S.C. § 1111 for murders that take place in these forests. My reasoning
accords with a recent Tenth Circuit opinion upholding federal criminal jurisdiction over the
prosecution of a defendant  under § 1111 for committing first-degree murder in the Ouachita National
Forest in Oklahoma.1 United States v. Fields, --- F.3d ---, No. 05-7128, 2008 WL 483281, at *2-*9
(10th Cir. Feb. 25, 2008).
   I. DOES 16 U.S.C. § 480 ALLOW THE FEDERAL GOVERNMENT TO EXERCISE
        CONCURRENT JURISDICTION OVER NATIONAL FOREST LANDS?
        This case requires us to delineate the extent of Congress’s Constitutional powers under the
Property, Federal Enclave, and Interstate Commerce Clauses as well as Congress’s intent in enacting
§ 480. I have reached the conclusion that under these three clauses of the Constitution Congress has
broad authority to legislate with respect to the national forests. The provision of the Weeks Act
specifically addressing jurisdiction over the national forests, § 480, provides for the exercise of
concurrent federal and state legislative jurisdiction over national forests, where the federal
government accepts such jurisdiction. Because § 480 allows for concurrent legislative jurisdiction
by the federal government, it also allows for the exercise of subject-matter jurisdiction by the federal
courts when Congress creates a cause of action. Congress has created a cause of action via 18
U.S.C. § 1111, which allows for federal prosecution of murder in the special territorial and maritime
jurisdiction of the United States, and via 18 U.S.C. § 7, which defines that jurisdiction. In turn, 18
U.S.C. § 3231 vests original jurisdiction in the federal district courts “of all offenses against the laws
of the United States,” including violations of § 1111.
A. Constitutional Authority to Exercise Legislative Jurisdiction
        Congress derives legislative authority to criminalize acts perpetrated in national forests from
the Federal Enclave Clause, Art. I, § 8, cl. 17; the Property Clause, Art. IV, § 3, cl. 2; and the
Interstate Commerce Clause, Art. I, § 8, cl. 3. Both the dissent and lead opinion reference only the


         1
            I also find it relevant to note that two other circuits have upheld convictions involving murder in national
forests. The Fifth Circuit in United States v. Avants, 367 F.3d 433 (5th Cir. 2004), upheld the conviction of Ernest Henry
Avants under 18 U.S.C. §§ 1111 and 7(3), for a 1966 racially motivated murder in a national forest located in
Mississippi. The Fourth Circuit in United States v. Jackson, 327 F.3d 273 (4th Cir. 2003), upheld the conviction of
Richard Allen Jackson for use of a firearm in relation to the kidnapping, sexual abuse, and murder of a victim in a
national forest in North Carolina, in violation of 18 U.S.C. § 924(j). Although each of these circuits implicitly found
that the district courts had subject-matter jurisdiction over the criminal prosecutions, neither discussed the issue of
jurisdiction in their opinions. For this reason, they do not aid our analysis, but the decisions are nevertheless relevant
to the question of whether the Western District of Michigan had jurisdiction in this case.
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                    Page 17


Property and Federal Enclave Clauses. At least one district court, however, has upheld § 480 as a
valid exercise of Congressional authority under the Interstate Commerce Clause. United States v.
Griffin, 58 F.2d 674, 675 (W.D.Va. 1932) (holding that the Weeks Act is a valid exercise of
Congress’s authority to regulate interstate commerce because its purpose is to increase the
navigability of streams by protecting their watersheds). Just as the creation of the national forests
represented an exercise of Congress’s powers under the Interstate Commerce Clause, so too would
administering and protecting that land and its inhabitants via criminal law. In addition, the Federal
Enclave Clause gives Congress legislative jurisdiction over lands ceded to it. In Collins v. Yosemite
Park & Curry Co., 304 U.S. 518, 528 (1938), the Supreme Court held that “[t]he States of the Union
and the National Government may make mutually satisfactory arrangements as to jurisdiction of
territory within their borders . . . .” The Court held that in two important respects the Federal
Enclave Clause should not be construed narrowly. First, the federal government may acquire
qualified as well as exclusive jurisdiction over land and, second, the government     may do so for
purposes beyond those specified in the language of the Enclave Clause.2 Id. at 528-29. Under
Wilson v. Cook, 327 U.S. 474, 486 (1946), to determine the extent of federal jurisdiction over a
territory, we must look at the state statute authorizing the sale as well as the federal statute
authorizing acquisition. In this case, § 480 authorizes federal acquisition, and Mich. Comp. Laws
§§ 3.401-3.402 constitute the state provisions authorizing the cession of state lands.
         The Supreme Court, however, has also held that regardless of the degree of jurisdiction
ceded by a state, the Property Clause gives Congress the power to enact legislation over federal land.
Kleppe v. New Mexico, 426 U.S. 529, 542-43 (1976). I think that this statement in Kleppe, as well
as the cases interpreting the Enclave Clause, yield the following interpretation. State cession statutes
determine the amount of jurisdiction that the state retains. Irrespective of this agreement, however,
Congress has a broad power to enact legislation related to federal land. The Supreme Court in
Kleppe determined that “Congress exercises the powers both of a proprietor and of a legislature over
the public domain.” Id. at 540. The Court rejected the “traditional” view “that the United States’
powers on most of the public lands are the limited powers of a proprietor, or property owner, not a
sovereign.” Charles F. Wilkinson, The Field of Public Land Law: Some Connecting Threads and
Future Directions, 1 PUB. LAND L. REV. 1, 7 (1980). “Kleppe thus complete[d] the long evolution
from the traditional model, which would relegate all exercises of police power to [Federal Enclave]
Clause lands only, to a broad federal preemptive authority under the Property Clause.” Id. at 11.
I therefore disagree with the lead opinion that this case presents a significantly clearer case of
Congressional authority under the Federal Enclave Clause than under the Property Clause. The only
question regarding Congressional authority under the Property Clause, then, is whether §§ 1111 and
7(3) constitute a “needful” rule “respecting” federal public land including the national forests. Art.
IV, § 3, cl. 2. Kleppe stands for the proposition that Congress has broad authority under the Property
Clause to enact criminal legislation regarding national forests, even if that legislation protects not
only the lands but also the people within them.3


         2
            “The Enclave Clause power is broader than its wording indicates in two ways. First, Congress may exercise
it over more than just purchased property. . . . Second, the catch-all ‘needful Buildings’ in the Clause’s list of places
subject to the power has been interpreted to include more than edifices with four walls. . . . [I]t may apply to lands used
for a National Park.” Marla E. Mansfield, A Primer of Public Land Law, 68 WASH. L. REV. 801, 804 (1993).
         3
            The Supreme Court in Kleppe upheld the constitutionality of the Wild Free-Roaming Horses and Burros Act,
which authorized both the Secretary of the Interior through the Bureau of Land Management and the Secretary of
Agriculture through the National Forest Service to protect the animals. 426 U.S. at 531. The Court thus implicitly found
that Congress had legislative jurisdiction, at least with respect to civil matters, over public lands including the national
forests. The Court rejected the plaintiffs-appellees’ narrow construction of the Property Clause as authorizing Congress
to legislate only in protection of the land itself. Instead, the Court held that the Property Clause is broad enough to “to
support legislation protecting wild animals that live on federal property . . . [and] which are not themselves federal
property.” Id. at 536-37.
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                     Page 18


B. Legislative Jurisdiction Under 16 U.S.C. § 480
        Of course, even if Congress has Constitutional authority to exercise legislative jurisdiction,
it may limit its own jurisdiction and that of the courts via specific statutes. Therefore, having
determined that three clauses of the Constitution give Congress legislative jurisdiction regarding
public lands, I next turn to the question of whether Congress has chosen to exercise that authority
via § 480. Precedent strongly suggests that § 480 provides for concurrent federal and state
legislative jurisdiction over national forests. The Supreme Court has held that by enacting § 480
“Congress in effect has declined to accept exclusive legislative jurisdiction over forest reserve lands,
and expressly provided that the state shall not lose its jurisdiction in this respect . . . .” Wilson, 327
U.S. at 487. The Court reiterated this axiom in 1977: “[T]he States retain civil and criminal
jurisdiction over the national forests notwithstanding the fact that the national forests are owned by
the Federal Government.” United States v. County of Fresno, 429 U.S. 452, 455 (1977). These
statements are best interpreted not as a suggestion that the states retain exclusive legislative
jurisdiction under § 480, but rather that the states retain concurrent jurisdiction with Congress.4
         The Fourth and Ninth Circuits have upheld concurrent federal legislative jurisdiction over
the national forests as well as federal courts’ subject-matter jurisdiction over civil and criminal
matters relating to the national forests. In United States v. California, 655 F.2d 914, 916 (9th Cir.
1980), the Ninth Circuit considered an action by the United States to recover fire-suppression costs
related to a fire negligently started by state employees in a national forest. The Ninth Circuit found
that a federal district court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1345, which vests
the federal district courts with original jurisdiction of suits brought by the federal government. Id.
at 916. The Ninth Circuit proceeded to apply state law in the absence of federal law on the subject
of a tort recovery for fire suppression costs. Id. at 916-20. In the course of its opinion, the Ninth
Circuit stated that 16 U.S.C. § 480 provides for concurrent state and federal legislative jurisdiction
over national forests. Id. at 919. Thus, the Ninth Circuit determined in California that the federal
government had concurrent jurisdiction over national forests pursuant to 16 U.S.C. § 480 and that
the district possessed subject-matter jurisdiction pursuant to 28 U.S.C. § 1345. In the instant case,
the federal government once again possesses concurrent jurisdiction over Manistee National Forest
and the district  court possessed subject-matter jurisdiction pursuant to 18 U.S.C. §§ 1111(b), 7(3),
and 3231.5
        In the 1996 case of United States v. Raffield, 82 F.3d 611 (4th Cir.), cert. denied, 519 U.S.
933 (1996), the Fourth Circuit held that the federal and state governments had concurrent legislative
jurisdiction over the national forests. The Fourth Circuit explained that 16 U.S.C. § 480 “means
only that the mere establishment of the forest does not alter the jurisdictional status of the land,” and
that § 480 “does not in any way preclude state and federal governments from entering into a
relationship of concurrent jurisdiction.” Id. at 613. The Fourth Circuit further explained that a
North Carolina state cession statute, similar to Mich. Comp. Laws § 3.401, indicated state consent
to concurrent jurisdiction and that 16 U.S.C. § 551 indicated federal acceptance of jurisdiction over


         4
            The language in the opinions suggests that the default assumption is that the federal government has exclusive
legislative jurisdiction over public lands, but that § 480 provides for the states’ retention of concurrent jurisdiction over
national forests. Furthermore, were § 480 to provide for exclusive legislative jurisdiction by the states, one would expect
the opinions to state this explicitly.
         5
            The dissent’s argument that California merely holds that jurisdiction over national forests exists when there
is a specific federal statute giving courts jurisdiction and that jurisdiction does not exist in the absence of such a statute
does not help us resolve this case. Dissent at 37. In both California and the instant case, such a statute exists in the form
of 28 U.S.C. § 1345 and 18 U.S.C. § 3231, respectively. The only question is whether first-degree murder in a national
forest is an offense against the laws of the United States. For reasons I explain in further detail infra, I believe that it
is.
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                     Page 19


all national forest lands. Id. at 612. Accordingly, a federal district court had subject-matter
jurisdiction over a prosecution for Jeromy Raffield’s drunk driving and refusal to submit to a breath
analysis in violation of the Assimilative Crimes Act, 18 U.S.C. § 13. While the Fourth Circuit held
that 16 U.S.C. § 551 indicated Congress’s broad acceptance of federal jurisdiction over all national
forest lands, we need not rely on similar reasoning here. Section 551 functioned in the opinion only
as the indicator of federal acceptance of jurisdiction. As I explain infra, acceptance of federal
jurisdiction over lands the federal government purchased prior to 1940 is presumed in the absence
of evidence of contrary federal intent. Because no such evidence of contrary intent exists with
respect to the government’s exercise of jurisdiction over the Oxford Lake parcel, we must conclude
that the federal government accepted jurisdiction over the parcel. Therefore, with respect to the land
at issue in this case, we do not need to rely6 on any other statute such as § 551 to indicate the federal
government’s acceptance of jurisdiction.
        The decisions in Raffield and California buttress an interpretation of § 480 as providing that
the states retain jurisdiction over persons within national forests “except so far as the punishment
of offenses against the United States.” 16 U.S.C. § 480. I think the correct interpretation of the
“except clause” is that it creates concurrent federal jurisdiction for the punishment of offenses
against the laws of the United States, including laws of both general and specific geographic
applicability. In United States v. Gibson, 881 F.2d 318 (6th Cir. 1989), we stated: “It has long been
established that the words ‘offense against the United States’ encompass all offenses against the
laws of the United States, not just offenses directed at the United States as target or victim.” Id. at
321. Although Gibson interpreted the phrase “offense against the United States” as used in the
federal fraud statute, 18 U.S.C. § 371, there is no reason to believe that the phrase has a different
meaning in the context of 16 U.S.C. § 480. Because Gibson is binding precedent, I think that we
must hold that “offenses against the United States” means offenses against the laws of the United
States. Furthermore, there exists no precedent suggesting that we should limit that category, as
Gabrion as well as the dissent argue, to only those laws that “are federal regardless of where the
crime is committed.” Dissent at 34.
        Restricting the meaning of “offense against the United States” under § 480 to only federal
laws of general geographic applicability would render the key clause “except so far as the
punishment of offenses against the United States” meaningless. The federal government always has
jurisdiction over offenses of general geographic applicability. The dissent’s narrow interpretation
of the “except clause” to merely reassert that obvious proposition renders the clause superfluous and
insignificant. “‘[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or insignificant.’” Duncan v. Walker, 533 U.S.
167, 174 (2001) (quoting Market Co. v. Hoffman, 101 U.S. 112, 115 (1879)). Therefore, I think that
§ 480 gives Congress concurrent legislative jurisdiction regarding federal offenses of specific as
well as general geographic applicability.
         Indeed, a Seventh Circuit case suggests that the phrase “offenses against the United States”
includes federal laws limited geographically in their application to the special maritime and
territorial jurisdiction of the United States. In United States v. Gill, 204 F.2d 740 (7th Cir. 1953),

         6
            I disagree with the dissent’s argument that Raffield relied on the language in § 551 regulating misdemeanor
traffic infractions and that, accordingly, the opinion’s holding is limited to the federal government’s jurisdiction over
drunk driving in the national forests. Dissent at 39. The Fourth Circuit did not find that Raffield had violated § 551.
Instead, the opinion found that “§ 551 confers broad federal jurisdiction over activities that affect the national forests.”
Raffield, 82 F.3d at 612. The Fourth Circuit found that as a result, national forests lay within the territorial jurisdiction
of the United States under 18 U.S.C. § 7(3) and that therefore the Assimilative Crimes Act applied to the forest. Under
parallel reasoning, we should hold that the United States has jurisdiction to enforce 18 U.S.C. § 1111 in the national
forests. This conclusion is mandated because 16 U.S.C. § 480 allows for concurrent state and federal jurisdiction; there
is no evidence contradicting a mandatory presumption in this case that the federal government has accepted jurisdiction
over the Oxford Lake parcel; Gabrion violated § 1111; and Oxford Lake falls within the scope of § 7(3).
Nos. 02-1386/1461/1570               United States v. Gabrion, et al.                          Page 20


the Seventh Circuit upheld a conviction under 18 U.S.C. § 113(b) for an assault with intent to
commit sodomy that took place on a federally registered vessel journeying across Lake Michigan
from Chicago, Illinois to Michigan City, Indiana. The defendant had argued that because Congress
had not defined and criminalized sodomy, it could not be a felony under § 113(b). Id. at 741-42.
The Seventh Circuit, however, rejected this argument and held that because Indiana criminalized
sodomy, under the Assimilative Crimes Statute and § 7(3) the assault with intent to commit sodomy
was a crime against the United States. Id. at 742-43. Thus, Gill stands for the proposition that a
statute federalizing a state crime in areas of federal jurisdiction (in that case 18 U.S.C. § 13) makes
this crime one committed “against the United States.” Id. at 743.
        Title 18 U.S.C. § 1111 is comparable to the Assimilative Crimes Act in that it provides for
the federal government’s prosecutorial jurisdiction over a crime (murder) ordinarily within the
jurisdiction of the states, so long as the crime takes place in an area of federal jurisdiction. My
interpretation does not lead to the conclusion that the federal government would have exclusive
jurisdiction of state-law causes of action within national forests. The “except clause” of 16 U.S.C.
§ 480 creates concurrent federal jurisdiction where the pre-existing legal regime prior to cession was
exclusive state jurisdiction (apart from federal crimes enacted pursuant to the Interstate Commerce
Clause); the “except clause” does not create an exception to concurrent federal and state jurisdiction.
Therefore, my argument yields the conclusion that if a murder takes place in a national forest where
the federal government has accepted concurrent jurisdiction, both the state and federal governments
have jurisdiction to prosecute that murder.
         The dissent argues that my interpretation would give federal courts jurisdiction over all state
crimes federalized in 18 U.S.C. § 13 (the Assimilative Crimes Act) that take place in national forests
and that this is an unprecedented expansion of federal jurisdiction. Dissent at 40. While the first
part of this claim is true, the latter is not. At least two courts of appeals decisions including one in
the Sixth Circuit have found federal jurisdiction for violations of § 13 that took place in national
forests. See, e.g., United States v. Terry, 86 F.3d 353, 354 (4th Cir. 1996), cert. denied, 524 U.S.
940 (1998); United States v. Couch, 65 F.3d 542, 543 (6th Cir. 1995).
        We next need to consider whether any statutes other than the Weeks Act limit federal
legislative jurisdiction over the national forests. Under a traditional interpretation of the Federal
Enclave Clause, we must look to the state statute authorizing cession to determine the degree of
federal jurisdiction. Wilson, 327 U.S. at 486. I do not believe, however, that we may still hold after
the Supreme Court’s decision in Kleppe that a state statute can limit federal legislative jurisdiction
over lands that the national government owns. Kleppe reiterated “that ‘[t]he power over the public
land thus entrusted to Congress is without limitations.” 426 U.S. at 539. Kleppe reasoned that the
terms of a state cession statute govern the extent of the state’s retention of jurisdiction and not the
terms of federal legislative jurisdiction. Id. at 541-43. Therefore, we could simply hold that
Congress has authority pursuant to the Property Clause to enact 18 U.S.C. § 1111, and that 16
U.S.C. § 480 does not preclude the application of § 1111 in national forests.
        Even if one believed erroneously that Kleppe’s expansive reading of the Property Clause did
not replace the older method of determining the extent of federal jurisdiction under the Federal
Enclave Clause, however, we must conclude that Congress has criminal jurisdiction over persons
within the Manistee National Forest. Michigan consented to the acquisition by the United States
of lands “needed for the establishment . . . of national forests in the state: Provided, That the state
of Michigan shall retain a concurrent jurisdiction with the United States in and over lands so
acquired” with respect to the execution of civil and criminal process. Mich. Comp. Laws § 3.401.
Section two of the relevant Michigan code authorized “the United States to pass such laws and to
make or provide for the making of such rules and regulations, of both a civil and criminal nature,
and provide punishment therefor, as in its judgment may be necessary for the administration, control,
and protection of such lands . . . .” Mich. Comp. Laws § 3.402. Thus, Michigan authorized federal
Nos. 02-1386/1461/1570                United States v. Gabrion, et al.                           Page 21


jurisdiction of offenses in violation of laws such as 18 U.S.C. § 1111, which apply in the special
territorial and maritime jurisdiction of the United States, when the federal government deems
enforcement necessary for the administration and control of the national forest lands.
C. Subject-Matter Jurisdiction
        The dissent correctly identifies the need to clarify the relationship between legislative and
subject-matter jurisdiction. Dissent at 38-39. Legislative jurisdiction refers to “[t]he sphere of
authority of a legislative body to enact laws and to conduct all business incidental to its law-making
function.” BLACKS’ LAW DICTIONARY 900 (6th ed. 1990). Subject-matter jurisdiction “refers to
[a] court’s power to hear and determine cases of the general class or category to which [the]
proceedings in question belong.” Id. at 1425.
        The question of whether Congress has legislative jurisdiction over national forests or whether
Congress merely possesses proprietorial ownership over the forests is intimately connected in this
case with the question whether the federal courts have criminal jurisdiction over first-degree murder
in a national forest. The dissent incorrectly interprets my opinion as suggesting that the
Constitution, in a self-executing manner, directly confers subject-matter jurisdiction in the federal
courts over murders in national forests. Dissent at 38. My argument instead develops along the
following logical chain: Congress possesses Constitutional authority to exercise legislative
jurisdiction; 16 U.S.C. § 480 allows for this exercise; there exists an unrebutted presumption that
Congress accepted legislative jurisdiction over the Oxford Lake parcel purchased in July 1939 and
that, consequently, the parcel lies within the territorial jurisdiction of the United States; Congress
has created a cause of action respecting first-degree murder in the territorial jurisdiction of the
United States; and Congress has given the federal district courts jurisdiction over this and other
criminal causes of action.
         I have made clear why I believe that 16 U.S.C. § 480 provides for concurrent legislative
jurisdiction by the federal government over offenses against the United States of both national and
limited geographic applicability. Congress has created a cause of action via 18 U.S.C. § 1111(b),
which allows for federal prosecution of murder in the special territorial and maritime jurisdiction
of the United States, and via 18 U.S.C. § 7(3), which defines that jurisdiction. As I explain infra,
the Oxford Lake parcel at issue lies within the territorial jurisdiction of the United States as defined
by § 7(3). And here is where the relationship between legislative and subject-matter jurisdiction
becomes clear. A violation of § 1111 in a national forest, where that forest falls within the scope
of § 7(3), is an offense against the laws of the United States, as I have explained supra. In turn, 18
U.S.C. § 3231 vests original jurisdiction in the federal district courts “of all offenses against the laws
of the United States.” I therefore believe that so long as the Oxford Lake parcel lies within the
territorial jurisdiction of the United States, pursuant to § 7(3), then the United States District Court
for the Western District of Michigan correctly found that it had subject-matter jurisdiction over
Gabrion’s prosecution.
        II. IS THE SOUTHERN THIRD OF OXFORD LAKE WHERE GABRION
                 ALLEGEDLY MURDERED TIMMERMAN, WITHIN
            THE SPECIAL TERRITORIAL AND MARITIME JURISDICTION
               OF THE UNITED STATES AS DEFINED IN 18 U.S.C. § 7(3)?
        In its June 2001 opinion, the district court found that the southern portion of Oxford Lake
where Gabrion allegedly murdered Timmerman (“Timmerman”) lies within the special territorial
jurisdiction of the United States as defined in § 7(3). J.A. at 201-12 (6/11/01 Dist. Ct. Op.). Section
7(3) includes within the special territorial jurisdiction of the United States:
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                Page 22


          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, magazine, arsenal, dockyard, or other needful
          building.
18 U.S.C. § 7(3). The district court’s conclusion regarding § 7(3) was not an issue upon remand and
was not addressed by the parties in their supplemental briefs before this court, so I will not address
it here.
         The question before us today is whether the federal government has accepted concurrent
legislative jurisdiction over the Oxford Lake parcel. Precedent establishes that, in the absence of
evidence of contrary intent, a presumption of acceptance of jurisdiction by the federal government
exists with respect to land acquired prior to 1940. The federal government purchased the Oxford
Lake parcel in July 1939, and Gabrion has presented no evidence suggesting that the federal
government took the requisite affirmative steps to rebut a presumption of acceptance of jurisdiction
at that time. United States Department of Agriculture (“USDA”) and interdepartmental opinions,
written after 1940, are advisory and insufficient to rebut the acceptance of jurisdiction. I therefore
conclude that the federal government has accepted jurisdiction over the Oxford Lake parcel.
A. Acceptance of Jurisdiction by the Federal Government
         Gabrion’s argument that the federal government never formally accepted jurisdiction over
the Oxford Lake parcel pursuant to 40 U.S.C. § 255 is unavailing. Prior to 1940, courts applied a
rebuttable presumption of acceptance by the federal government to jurisdiction over public lands
that it owned. The Supreme Court held that when a state cession statute “conferred a benefit, the
acceptance of the act is to be presumed in the absence of any dissent on [the federal government’s]
part.” Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 528 (1885); see also Benson v. United
States, 146 U.S. 325, 330 (1892) (same). The Court presumed federal acceptance of jurisdiction “in
the absence of evidence of a contrary intent.” Silas Mason Co. v. Tax Comm’n, 302 U.S. 186, 207
(1937). With the passage of § 255 on February 1, 1940,7 the federal government had to start giving
notice regarding acceptance of jurisdiction over public lands acquired thereafter. Paul v. United
States, 371 U.S. 245, 264 (1963). The Supreme Court and the Eighth Circuit have applied the notice
requirement of § 255 to national forest lands acquired after 1940. Adams v. United States, 319 U.S.
312, 315 n.6 (1943) (reasoning that “[i]n view of the general applicability of the 1940 Act it is
unnecessary to consider the effect of the Weeks Forestry Act, 16 U.S.C. § 480”); Hankins v. Delo,
977 F.2d 396, 398 (8th Cir. 1992) (holding with respect to the Mark Twain National Forest in
Missouri that “[t]he parties do not indicate the United States accepted jurisdiction”). The application
of the § 255 notice requirement to national forest lands makes it logical to conclude that the prior
rebuttable presumption of acceptance of federal jurisdiction also applied to national forests.
B. Administrative Opinions
        For several reasons, post-1940 opinions of the USDA, interdepartmental reports, and the
Forest Service Manual, which exhibit a strong preference for maintaining proprietorial rather than
concurrent jurisdiction over national forests, are insufficient to rebut a presumption of federal
legislative jurisdiction over the Oxford Lake parcel in the Manistee National Forest. To begin, the
Department of Justice and not the USDA possesses the authority to determine whether the federal
government has criminal jurisdiction over acts committed upon federal land. 28 C.F.R. § 0.56 (“The
Assistant Attorney General in charge of the Criminal Division is authorized to determine

          7
              In 2002, Congress renumbered 40 U.S.C. § 255 as 40 U.S.C. § 3112. Pub. L. No. 107-217, § 1, 116 Stat. 1144
(2002).
Nos. 02-1386/1461/1570               United States v. Gabrion, et al.                         Page 23


administratively whether the federal government has exclusive or concurrent jurisdiction over
offenses committed upon lands acquired by the United States, and to consider problems arising
therefrom.”)
         Furthermore, the executive-branch opinions cited by Gabrion would not qualify for Chevron
deference unless “it appear[ed] that Congress delegated authority to the agency generally to make
rules carrying the force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.” United States v. Mead Corp., 533 U.S. 218, 226-27
(2001). The USDA statements cited by the defendant represent merely opinions and commission-
report findings rather than official agency interpretations promulgated under the Department’s
rulemaking authority. “Interpretations such as those in opinion letters—like interpretations
contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the
force of law—do not warrant Chevron-style deference.” Christensen v. Harris County, 529 U.S.
576, 587 (2000). Moreover, statements made after the enactment of § 255 cannot rebut the
presumption of acceptance regarding property acquired before 1940. Even if we were to accept the
statements as potentially relevant, they probably do not represent the type of affirmative action
required to rebut the pre-1940 presumption of acceptance. See Silas Mason, 302 U.S. at 207-08
(holding that when Congress “validated and ratified ‘all contracts’” in connection with a dam
project, “the evidence [was] clear that the Federal Government contemplated the continued existence
of state jurisdiction”); Humble Pipe Line Co. v. Waggonner, 376 U.S. 369, 372 (1964) (holding that
the federal government did not lose the exclusive jurisdiction it acquired in 1930 over a federal
enclave via cession by the state of Louisiana, when United States “leased [to a private company] the
right to exploit parts of the reservation for oil and gas and for an oil pipeline”).
         Finally, the reports themselves are not conclusive regarding the question of jurisdiction. The
1956 Report stated that the terms it uses to describe jurisdiction “are made here only for the
purposes of this study, and they are not purported as absolute criteria for interpreting legislation or
judicial decisions, or for other purposes.” Jurisdiction Over Federal Areas Within the States:
Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within
the States, Part I 13-14 (1956) (Def. Ex. D). The same report also emphasized that agency
preference does not determine the jurisdictional status of lands, and that often lands acquired before
1940 “are held with more jurisdiction in the United States than is considered best by the Federal
agency concerned.” Id. at 35. Although several of the statements express a preference that Congress
exercise only proprietorial ownership, they do not deny the legality of concurrent legislative
jurisdiction under § 480. See, e.g., Land & Natural Res. Div., U.S. Dep’t of Justice, Fed. Legislative
Jurisdiction: Report Prepared for the Public Land L. Rev. Comm. 75 (September 1969) (Def. Ex.
J) (noting that “only seven of the Forest Service’s 245 properties contain other than proprietorial
jurisdiction”); Report of the Interdepartmental Committee, Part II at 114 (Def. Ex. E) (stating that
“[t]he forest service . . . has not accepted the jurisdiction proffered by the statutes of many states,
and the vast majority of federal forest lands are held by the Federal Government in a proprietorial
status only”) (emphasis added); Report of the Interdepartmental Committee, Part I at 64, 101 (Def.
Ex. D) (noting that the Department of Agriculture exercises “proprietorial” ownership over nearly
all of its lands). Nor do the statements deny the existence of federal legislative jurisdiction over
lands acquired before 1940. Id. These statements merely reflect efforts to resolve the jurisdictional
confusion created by the passage of § 255, with respect to lands acquired after the 1940 enactment.
Roger W. Haines, Jr., Crimes Committed on Federal Property—Disorderly Jurisdictional Conduct,
4 CRIM. JUST. J. 375, 393-95 (1981).
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                    Page 24


  III. DOES THE PATCHWORK CHARACTER OF CONCURRENT FEDERAL AND
        EXCLUSIVE STATE JURISDICTION IN THE MANISTEE NATIONAL
          FOREST VIOLATE THE CONSTITUTIONAL GUARANTEES OF
                  DUE PROCESS AND EQUAL PROTECTION?
         Gabrion argues that the patchwork character of federal criminal jurisdiction in the Manistee
National Forest, which depends on the date of acquisition of parcels of land, violates his rights to
due process and equal protection under the Fifth Amendment      as well as the prohibition on cruel and
unusual punishment under the Eighth Amendment.8 Gabrion’s primary argument is that the federal
government’s patchwork jurisdiction is inconsistent with the Supreme Court’s decision in Furman
v. Georgia, 408 U.S. 238 (1972), which prohibited arbitrary enforcement of the death penalty. Id.
at 249 (Douglas, J., concurring); id. at 274 (Brennan, J., concurring); see also id. at 310 (Stewart,
J., concurring) (stating that the Eighth and Fourteenth Amendments prohibit “wanton[]” and
“freakish[]” imposition of the death penalty). While I agree that the pattern of jurisdiction in the
Manistee National Forest created by 16 U.S.C. § 480 and 40 U.S.C. § 255 can be characterized as
patchwork, I do not agree that this pattern is arbitrary. A clear set of legal rules determines which
national forest lands are characterized by concurrent federal criminal jurisdiction and which national
forest lands are characterized by state jurisdiction because the federal government has not accepted
jurisdiction. In conclusion, I do not think that the patchwork character of federal criminal
jurisdiction in the Manistee National Forest means that the government’s prosecution        of Gabrion
for the death penalty pursuant to 18 U.S.C. § 1111 violates the Eighth Amendment.9
         Neither does the patchwork jurisdiction violate Gabrion’s right to equal protection under the
Fifth Amendment’s Due Process Clause. See Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that
the District of Columbia’s maintenance of segregated schools violated the Fifth Amendment’s Due
Process Clause). The government makes a convincing argument that federal Indian law offers an
analogous area where patchwork jurisdiction does not violate the Equal Protection Clause of the
Fourteenth Amendment, reversely incorporated into the Fifth Amendment. The Supreme Court has
described jurisdiction in “Indian country” as “governed by a complex patchwork of federal, state,
and tribal law.” Duro v. Reina, 495 U.S. 676, 680 n.1 (1990). Whether the federal or a tribal or
state government has criminal jurisdiction depends on the location where a crime is committed, the
nature of the crime, and whether both the perpetrator and the victim are members of the same tribe.
See Negonsott v. Samuels, 507 U.S. 99, 102-03 (1993) (describing jurisdictional rules under the
Indian Country Crimes Act, the Indian Major Crimes Act, and the Kansas Act); Duro, 495 U.S. at
688 (holding that a tribe does not have criminal jurisdiction over a nonmember Indian who commits
a crime on the tribe’s territory). In Washington v. Confederated Bands & Tribes of Yakima Indian
Nation, 439 U.S. 463 (1979), the Supreme Court considered whether such patchwork jurisdiction
is arbitrary and irrational under the Equal Protection Clause. The case concerned a Washington law
that granted jurisdiction to the state over Indian persons and Indian territory within the state, with

         8
            In Sections III through V of my opinion, I discuss Gabrion’s argument regarding the patchwork character of
federal jurisdiction in the Manistee National Forest, as well as Gabrion’s arguments regarding the sufficiency of the
evidence required to establish jurisdiction and the jury instructions respecting jurisdiction. I have addressed these issues
because although they touch on the merits of the case, they are also intertwined with the question of whether the district
court had subject-matter jurisdiction over this case. Were Gabrion to succeed on any one of these arguments, I do not
think the district court would have properly exercised jurisdiction. Furthermore, the parties argued these three issues
in briefs filed in February 2007, in response to our request for briefing on the issue of jurisdiction.
         9
            The Supreme Court’s decision in Parker v. Dugger, 498 U.S. 308 (1991), which Gabrion also cites for the
proposition that the death penalty cannot be imposed in an arbitrary and irrational manner, is similarly inapposite. In
Parker, the Supreme Court overturned the Eleventh Circuit’s denial of habeas corpus relief on the ground that the Florida
Supreme Court had affirmed the death penalty based on the incorrect determination that the trial court had found no
nonstatutory mitigating circumstances. Id. at 318-21. By contrast, the instant case does not involve the question whether
an error in judicial process had denied Gabrion the right to rational administration of the death penalty.
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                     Page 25


the exception that in all but eight subject-matter areas Indians would retain jurisdiction on trust or
restricted lands unless a tribe requested otherwise. Id. at 465-66. The Washington statue thus
created patchwork jurisdiction in both a geographic and thematic sense. The Ninth Circuit found
that the law’s creation of checkerboard jurisdiction lacked a rational basis and violated the Equal
Protection Clause. Id. at 467-68. The Supreme Court overturned the court of appeals decision,
however, explaining: “The lines the State has drawn may well be difficult to administer. But they
are no more or less so than many of the classifications that pervade the law of Indian jurisdiction.”
Id. at 502.
        Gabrion further argues that the patchwork character of federal jurisdiction over the Manistee
National Forest, resulting from the legal regime established by 16 U.S.C. § 480 and 40 U.S.C. § 255,
violates his due process right to ex ante notice of the penalty for his crime. The cases cited by the
government in response are not dispositive of this issue.10 I find Gabrion’s argument unpersuasive,
however, for three reasons. First, because 18 U.S.C. § 1111 was operative at the time that Gabrion
allegedly committed the murder, Gabrion had notice of the possibility that he would receive the
death penalty for committing premeditated murder within the special maritime and territorial
jurisdiction of the United States. “The general rule that ignorance of the law or a mistake of law is
no defense to criminal prosecution is deeply rooted in the American legal system.” Cheek v. United
States, 498 U.S. 192, 199 (1991). There are no ex post facto concerns in this case that might give
us pause regarding whether Gabrion had notice.11 Second, a reasonable actor entering a national
forest would have been aware of the possibility that the federal government might have criminal
jurisdiction over acts committed therein. Third, the fact that the federal government has criminal
jurisdiction over some but not all of the parcels in the Manistee National Forest and that these are
arrayed in a patchwork fashion does not mean Gabrion had no notice that death might be the
potential penalty for first-degree murder within Manistee. Even if the federal government had

         10
              The government cites Camfield v. United States, 167 U.S. 518 (1897), as an illustration of a patchwork
ownership pattern between public and private land. Camfield, however, is not relevant to the issue of notice because
the case concerned the government’s regulatory powers under the Property Clause and not the question whether
patchwork criminal jurisdiction violates the Due Process Clause. The government further cites two opinions from our
sister circuits, which held that lack of notice to a federal employee and to an alien criminal defendant regarding the exact
penalties for their acts did not violate due process. In Farrell v. Dep’t of Interior, 314 F.3d 584, 590-94 (Fed. Cir. 2002),
the Federal Circuit held that due process does not require advance notice to employees of the specific disciplinary
penalties to which they may be subject. In United States v. Miranda-Ramirez, 309 F.3d 1255 (10th Cir. 2002), an alien
criminal defendant challenged the recommended terms of his imprisonment for unauthorized reentry into the United
States after he was deported following conviction for an aggravated felony. Id. at 1257-58. Nevertheless, the Tenth
Circuit rejected the defendant’s claim that his sentence violated due process because it exceeded the potential sentence
incorrectly cited on a form provided to the defendant when he was deported. Id. at 1261. These cases are not dispositive.
Federal imposition of the death penalty implicates far greater due process concerns than an administrative agency’s
disciplinary actions, at issue in Farrell. And the holding of Miranda-Ramirez—that an alien had no due process right
to expect that a criminal penalty would be the same as the one cited on a deportation form years earlier—does not speak
to an individual’s due process right to notice of the potential penalties for his crime before he commits it. Lastly, the
government cites United States v. Van Chase, 137 F.3d 579, 582 (8th Cir. 1998), which held that a federal district court
had jurisdiction so long as sufficient evidence of acts within Indian territory existed to make out the elements of the
offense and that, accordingly, the court could admit evidence of events that took place outside of Indian territory to show
the context of the crime. Van Chase, likewise, does not help us resolve the issue at hand, which is not evidentiary but
Constitutional in nature.
         11
              In support of his argument that he lacked notice regarding the potential punishment of death, Gabrion
compares the instant case to Dobbert v. Florida, 432 U.S. 282 (1977), in which the Supreme Court found that the
criminal defendant had such notice. Dobbert, however, sheds no light on the instant case. In Dobbert, the Supreme
Court held that a procedural rather than a substantive change to a statute providing for a criminal punishment did not
violate the Constitutional prohibition on ex post facto application of the law. Id. at 293-95. The Court also held that the
Florida statute allowing for the death penalty, which operated at the time that the defendant committed his crime, gave
him “fair warning” that he might be punished with death. Id. at 297-98. The fact that Florida subsequently revised the
statute, after the defendant committed murder but before his trial, did not violate the prohibition on ex post facto laws.
Id. Similar ex post facto concerns to the ones at issue in Dobbert are not present here.
Nos. 02-1386/1461/1570                       United States v. Gabrion, et al.                                     Page 26


criminal jurisdiction over the entirety of the Manistee National Forest, at some seemingly arbitrary
geographic point a person would cross over from the area of Michigan’s criminal jurisdiction to the
area of concurrent federal jurisdiction. If that person committed first-degree murder on one side of
the line, he could not receive the death penalty; if the same person committed first-degree murder
on the other side of the line, he might receive the death penalty. The jurisdictional consequences
of committing first-degree murder within or outside of the Oxford Lake parcel is in no significant
respect more arbitrary than the jurisdictional consequences of the same act were there no patchwork
jurisdiction within the Manistee National Forest. In conclusion, I do not think the patchwork
jurisdiction in the Manistee National Forest violates Gabrion’s right to due process or equal
protection under the Fifth Amendment.
     IV. DID THE UNITED STATES PRESENT SUFFICIENT EVIDENCE FOR THE
           JURY TO FIND THAT GABRION DROWNED TIMMERMAN IN
               THE OXFORD LAKE PARCEL, PURCHASED BY THE
                    FEDERAL GOVERNMENT IN JULY 1939?
        The government’s theory of the case is that Timmerman was alive when Gabrion bound her
with chains and padlocks, connected the chains to cinder     blocks to weigh her down, took her into
a boat, and dumped her into Oxford Lake to drown.12 By contrast, Gabrion argues that the
government failed to prove beyond a reasonable doubt that Timmerman drowned in Oxford Lake,
or even that her death took place on federal property. Gabrion claims that assuming arguendo that
the federal government possesses criminal jurisdiction over the Oxford Lake parcel, the government
has not proved the factual foundation necessary to establish criminal jurisdiction. Had Gabrion
killed Timmerman outside of the Manistee National Forest, or in a different parcel of land within
Manistee, and then dumped her body into Oxford Lake, the federal government would not
necessarily have jurisdiction over the land where the murder took place. Thus, according to
Gabrion, if the federal government did not present sufficient evidence to prove beyond a reasonable
doubt that Gabrion drowned Timmerman in the Oxford Lake parcel, then the government would also
not be able to establish criminal jurisdiction in this case.
         The issue of what standard to apply in reviewing the district court’s finding of jurisdiction
is complicated because the question of jurisdiction is intermeshed with the merits of the case, as the
location of the murder is an element of the offense under 18 U.S.C. § 1111(b). In its June 2001
opinion, the district court had cited United States v. Prentiss, 206 F.3d 960, 967 (10th Cir. 2000),
for the proposition that “[t]he fact that the alleged offense occurred within the special maritime and
territorial jurisdiction of the United States is an element of the crime that must be alleged in the
indictment and established at trial.” J.A. at 202 (6/11/01 Dist. Ct. Op. at 2). Subsequent to the
district court’s opinion, however, the Tenth Circuit sitting en banc reversed Prentiss, holding that
the indictment’s failure to allege an element of the offense in that case did not strip the district court



         12
             The superseding indictment dated February 14, 2002 no longer contained the language present in the original
indictment, J.A. at 82, alleging that Gabrion drowned Timmerman in Oxford Lake. Instead, the superseding indictment
alleged that Gabrion “did, after deliberation, premeditation and malice aforethought, willfully kill Rachael Timmerman
within the special maritime and territorial jurisdiction of the United States, specifically in the Manistee National Forest.”
J.A. at 83. In his supplemental brief before this court, Gabrion argued that because the federal government had not
accepted jurisdiction over the parcels of land within the Manistee National Forest acquired after 1940, the federal
government had not produced evidence sufficient to show Gabrion murdered Timmerman within the special maritime
and territorial jurisdiction of the United States. In response, the federal government’s brief argued that the evidence
presented at trial sufficed to prove beyond a reasonable doubt that Gabrion drowned Timmerman in the Oxford Lake
parcel, which the district court had determined to be within the special maritime and territorial jurisdiction of the United
States. Accordingly, even though the superseding indictment did not allege specifically that Gabrion drowned
Timmerman in the southern third of Oxford Lake, this factual contention is the focus of our inquiry regarding whether
the evidence is sufficient to establish jurisdiction.
Nos. 02-1386/1461/1570               United States v. Gabrion, et al.                         Page 27


of subject-matter jurisdiction. United States v. Prentiss, 256 F.3d 971, 973 (10th Cir. 2001) (en
banc). The sufficiency of the indictment, however, is not at issue in this case.
        Nevertheless, in evaluating the jurisdictional issue we must review both legal conclusions
of the district court and factual conclusions of the jury. The district court held in its June 2001
opinion that Oxford Lake is within the territorial jurisdiction of the United States as defined under
18 U.S.C. § 7(3), and the jury concluded that Gabrion murdered Timmerman within the territorial
jurisdiction of the United States, as defined in the jury instructions. On remand, the district court
held further “that the Weeks Act permitted the United States to obtain concurrent jurisdiction over
national forest lands; that the State of Michigan granted concurrent jurisdiction to the United States
over national forest lands;” and that no evidence rebuts the presumption that the United States
accepted jurisdiction over the Oxford Lake parcel when it purchased the parcel in 1939. United
States v. Gabrion, No. 1:99-CR-76, 2006 WL 2473978, at *10 (W.D. Mich. Aug. 25, 2006).
         Despite the Tenth Circuit’s en banc opinion in Prentiss, we may still consider whether we
find persuasive the dicta in the panel opinion in Prentiss stating that “[w]hile the court may
determine, as a matter of law, the existence of federal jurisdiction over a geographic area, whether
the locus of the offense is within that area is an essential element that must be resolved by the trier
of fact.” Prentiss, 206 F.3d at 967. Following a similar line of reasoning, the Ninth Circuit rejected
the federal government’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) for
lack of subject-matter jurisdiction, in a case that involved a “jurisdictional requirement [that was]
also a substantive element of the offense charged.” United States v. Nukida, 8 F.3d 665, 670 (9th
Cir. 1993) (holding that when the issue of subject-matter jurisdiction is “intermeshed” with the
merits of the case, jurisdiction “should be determined at trial”) (quoting United States v. Ayarza-
Garcia, 819 F.2d 1043, 1046, 1048 (11th Cir.), cert. denied, 484 U.S. 969 (1987)). The Eleventh
Circuit opinion, which the Ninth Circuit opinion quoted in reaching its holding, is also cited
positively in Charles Alan Wright & Arthur R. Miller, 1A Federal Practice & Procedure: Criminal
§ 194 (3d ed. 2001) for the proposition that a “court may defer its ruling [on a Rule 12 motion] if
factual matters will be developed at trial that are relevant to the decision.” Id. at § 194 & n.1. Even
if I were to agree that under the above precedent the district judge appropriately denied Gabrion’s
motion to dismiss, in part because the factual findings related to jurisdiction were the province of
the jury, that would not resolve the question of what standard to apply in reviewing the district
court’s finding of jurisdiction.
         Whether the government proved that Gabrion murdered Timmerman on a parcel of national
forest land over which the federal government has criminal jurisdiction is an element of the offense,
which the government must prove to the jury beyond a reasonable doubt. United States v. Gomez,
87 F.3d 1093, 1095 (9th Cir. 1996) (prosecution must prove to the jury, beyond a reasonable doubt,
a jurisdictional element requiring that the building damaged in the charged arson had substantial
connection to interstate commerce); Parker v. Ward, 622 F.2d 298, 302-08 (8th Cir.), cert. denied,
449 U.S. 851 (1980) (for federal robbery and murder statutes, location in which crime took place
is a jurisdictional element that must be proven beyond a reasonable doubt). The government’s
burden of proof regarding the elements of the offense, however, also does not answer the question
of what standard of review we are to apply in responding to Gabrion’s argument that the government
did not prove he had drowned Timmerman in Oxford Lake insofar as Gabrion’s argument requires
us to review the district court’s finding of jurisdiction.
       There are two possible standards of review that we may consider applying. Were we
responding to Gabrion’s sufficiency-of-the-evidence requirement in relation to the merits of the case,
we would need to apply the deferential standard set forth by the Supreme Court in Jackson v.
Nos. 02-1386/1461/1570                     United States v. Gabrion, et al.                                 Page 28


Virginia, 443 U.S. 307 (1979).13 Under the Jackson standard, we would determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at
319. I find it significant, however, that we are not now reviewing the merits of the case and are
instead reviewing the district court’s finding of jurisdiction. I therefore think that it may be
inappropriate to apply the extremely deferential Jackson standard. Instead, we might apply the
standard ordinarily used when we review a district court’s determination regarding jurisdiction.
Under this standard, we would review the district court’s legal conclusions de novo and the district
court’s factual determinations for clear error. Certain Interested Underwriters at Lloyd’s, London
v. Layne, 26 F.3d 39, 41 (6th Cir. 1994) (“In reviewing the district court’s determination concerning
its jurisdiction, we review the court’s findings of fact for clear error and conclusions of law de
novo.”); see also E.W. Scripps Co. & Subsidiaries v. United States, 420 F.3d 589, 596 (6th Cir.
2005); Thomas v. Woolum, 337 F.3d 720, 725 (6th Cir. 2003). We do not have occasion to resolve
the issue of which standard to apply today, because under either standard we would need to affirm
the jury or the district court’s factual conclusions supporting jurisdiction.
         Were we to apply the Jackson standard, we would look to the trial evidence. The trial
evidence demonstrated that Timmerman’s body was found in Oxford Lake, approximately seventy-
five to one-hundred feet from shore, 4 Joint Appendix (“J.A.”) at 1004 (Trial Tr. at 951:13-16), and
approximately 227 feet from the boundary line of the Manistee National Forest. 4 J.A. at 1172
(Trial Tr. at 1187: 15-16). That portion of the lake contained a very thick mat of vegetation that
made it difficult to get to the body. 4 J.A. at 1007 (Trial Tr. at 954:18-21); 1014-15 (Trial Tr. at
961:1-962:4); 1031 (Trial Tr. at 990:11-23). Both the fisherman who discovered the body and the
police who recovered it testified that the thickness of the vegetation rendered it impossible for the
body to have floated to that location from the northern portion of the lake. 4 J.A. at 1014 (Trial Tr.
at 961:13-23); 1048-49 (Trial Tr. at 1007:24-1008:4).
        The trial evidence indicated that Timmerman’s limbs were restrained with handcuffs, chains,
and locks, and that her body was weighed down with cement blocks. 4 J.A. at 1040-41, 1043 (Trial
Tr. at 999-1000, 1002). Further, her mouth and eyes were covered with duct tape wrapped around
her head. 4 J.A. at 1010 (Trial Tr. at 957:10-18); 1044 (Trial Tr. at 1003:14-46); 1060-61 (Trial Tr.
at 1019:22-1020:8). While investigating the crime, police recovered duct tape on the road
approaching the lake, 4 J.A. at 1029 (Trial Tr. at 988:21-23).
         The coroner testified that drowning was the most likely cause of death, 4 J.A. at 1228-47
(Cohle Test. at 7-35), and that Timmerman’s body had likely been in the water for three to four
weeks before it was discovered, 4 J.A. at 1234 (Cohle Test. at 16:14-15). He explained that
drowning is a diagnosis of exclusion that required him to reject other causes of death, 4 J.A. at 1232
(Cohle Test. at 13:11-24), and that he examined Timmerman’s neck and face and found no evidence
of asphyxiation, 4 J.A. at 1240-43 (Cohle Test. at 22-25). However, on cross-examination, he also
testified that he “can’t rule out that she was asphyxiated, for example, at some other time and then
dumped into the lake.” 4 J.A. at 1247 (Cohle Test. at 35:15-17).
        Finally, three witnesses testified at trial that Gabrion told each of them separately either that
he had killed a woman by drowning her in a lake or that if he were to kill someone, he would do so
in that manner. An old acquaintance of Gabrion from childhood, Lloyd Westcomb, testified that
Gabrion told him that Gabrion “had gotten rid of his girlfriend permanently . . . that he bound her
down, threw her over the boat in a lake, something like that.” 4 J.A. at 1271 (Trial Tr. at 1355: 8-
11). Another long-time acquaintance of Gabrion, Floyd Wismar, testified that Gabrion once told

         13
           In Gomez, the Ninth Circuit declined to resolve the issue of which standard of review should apply, despite
concluding that the prosecution must prove the element beyond a reasonable doubt at trial. 87 F.3d at 1097 n.3
(upholding the existence of a jurisdictional element even under a standard of de novo review for questions of law).
Nos. 02-1386/1461/1570               United States v. Gabrion, et al.                        Page 29


him: “something real close to the effect that it’s not hard to get rid of somebody; you just weight
‘em down and throw ‘em in a lake.” 4 J.A. at 1326 (Trial Tr. at 14: 4-6). Gabrion’s nephew,
Michael Gabrion, Jr. testified that Gabrion had said on four or five occasions that if he ever killed
someone he would do so by wrapping the person in chicken wire and chains, weighting the person
with bricks, and throwing the person in a lake. 4 J.A. at 1337 (Trial Tr. at 42: 5-19).
        The evidence presented at trial was sufficient for a reasonable jury to conclude beyond a
reasonable doubt that Timmerman drowned in Oxford Lake. Although the coroner said that he was
unable to “rule out” asphyxiation as the cause of death, he also offered detailed testimony as to why
he thought asphyxiation was unlikely. From this, a reasonable jury could conclude beyond a
reasonable doubt that Timmerman drowned. The jury also could have concluded beyond a
reasonable doubt that Timmerman drowned in the Oxford Lake parcel, ie., the portion of the lake
owned by the federal government. The uncontroverted testimony that the thick bed of weeds north
of where her body was found renders it extremely unlikely that Timmerman’s body drifted
southward over 227 feet, from privately controlled waters to the location where it was found.
Accordingly, a jury could conclude that the murder took place within the federal government’s
jurisdiction. For these reasons, the government presented sufficient evidence for a reasonable jury
to conclude beyond a reasonable doubt that Gabrion murdered Timmerman on federal property that
lies within the territorial jurisdiction of the United States. Thus, we would reject Gabrion’s
sufficiency-of-the-evidence argument under the Jackson standard.
        Were we to review the district court’s factual determinations for clear error we would also
need to uphold the district court’s conclusion that it had subject-matter jurisdiction over Gabrion’s
prosecution pursuant to § 1111. In its June 2001 opinion ruling on Gabrion’s motion to dismiss for
lack of subject-matter jurisdiction, the district court addressed “[t]he government’s theory of
jurisdiction . . . based upon its assertion that because it owns the bed of the southern one-third of
Oxford Lake, it has jurisdiction over crimes committed in that portion of the lake.” J.A. at 208
(6/11/01 Dist. Ct. Op. at 8). The district court concluded that “[b]ecause there is no question that
the federal government owns the bed of the southern one-third of Oxford Lake, it also has
jurisdiction over crimes occurring in the space immediately above the bed.” J.A. at 211 (6/11/01
Dist. Ct. Op. at 11). In the same opinion, the district judge stated that he would not make a finding
regarding the location of the alleged murder because that was an element of the offense to be
resolved by the jury. J.A. at 212 (6/11/01 Dist. Ct. Op. at 12). Following trial, however, in its
August 2006 opinion on remand, the district court did make findings of fact related to jurisdiction.
In addition to addressing the questions of law regarding jurisdiction, the district court analyzed the
evidence presented at trial under a preponderance of the evidence standard and determined “that the
United States had jurisdiction to prosecute crimes occurring on the Oxford Lake parcel of the
Manistee National Forest.” Gabrion, 2006 WL 2473978, at *10. This statement makes obvious that
the district court concluded as a factual matter that Gabrion killed Timmerman by drowning her in
the Oxford Lake parcel. The district court reached this factual determination in accord with the
jury’s conviction of Gabrion for killing Timmerman within the territorial jurisdiction of the United
States. I think the trial evidence that I reviewed above requires us to conclude that the district
court’s factual determination that Gabrion drowned Timmerman in the southern third of Oxford
Lake did not amount to clear error. Accordingly, Gabrion’s sufficiency-of-the-evidence argument
fails.
Nos. 02-1386/1461/1570                 United States v. Gabrion, et al.                             Page 30


          V. DID THE DISTRICT COURT ERR BY INSTRUCTING THE JURY
             THAT GABRION MURDERED TIMMERMAN WITHIN THE
            SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF
                 THE UNITED STATES IF HE MURDERED HER ON
                  PROPERTY OWNED BY THE UNITED STATES?
        Gabrion argues that the district court gave the jury an erroneous instruction regarding
jurisdiction in violation of his right to a fair trial under the Fifth and Sixth Amendments. The district
court instructed the jury that: “If you find beyond a reasonable doubt that the government has
proven that the location of the alleged murder occurred on property owned by the United States, you
are instructed that such property is within the special maritime and territorial jurisdiction of the
United States.” Gabrion argues that the jury instruction fundamentally misconstrued the law
because it did not allow for the possibility that Gabrion murdered Timmerman on a parcel of federal
land in the Manistee National Forest, which the federal government acquired after 1940 and for
which it did not accept jurisdiction.
          Although we correct “defects in subject-matter jurisdiction . . . regardless of whether the
error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630 (2002), the jury-
instruction issue does not itself raise a defect in subject-matter jurisdiction but rather raises the
question of whether the jury properly found the factual foundation necessary to establish federal
criminal jurisdiction. Therefore, because Gabrion’s counsel did not object to the jury instructions
at trial, we review the instructions for plain error. United States v. Donathan, 65 F.3d 537, 540 (6th
Cir. 1995); FED. R. CRIM. P. 52(b). “Under that test, before an appellate court can correct an error
not raised at trial, there must be (1) ‘error,’ ( 2) that is ‘plain,’ and 3) that ‘affect[s] substantial
rights.’” Johnson v. United States, 520 U.S. 461, 466-67 (1997) (quoting United States v. Olano,
507 U.S. 725, 732 (1993)). When these three conditions are satisfied, we may exercise our
discretion to “correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.’” Olano, 507 U.S. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).
        The district court’s jury instruction constituted an error under the first part of the test
because, as I have explained supra, federal ownership of national forest land is not synonymous with
federal criminal jurisdiction. The district court’s jury instruction ignored the possibility that the jury
might conclude that Gabrion murdered Timmerman on a parcel within the Manistee National Forest
that the federal government owned but over which it did not have criminal jurisdiction.
         Whether the district court’s error was “plain” under the second part of the test set forth in
Olano involves a more complicated inquiry. “A ‘plain error’ is one that is clear or obvious.” United
States v. Oliver, 397 F.3d 369, 379 (6th Cir. 2005) (citing Olano, 507 U.S. at 734). For us to
consider the error plain, however, the error does not need to be obvious at the time of the trial but
rather can become obvious pending appeal. Id. An error may be plain “where the law at the time
of trial was settled and clearly contrary to the law at the time of appeal.” Johnson, 520 U.S. at 468.
The Supreme Court’s decision in Johnson and our decision in Oliver thus stand for the proposition
that although the law regarding 16 U.S.C. § 480 and 40 U.S.C. § 255—specifically, the relationship
between the timing of the federal government’s acquisition of a parcel of land and federal criminal
jurisdiction—may not have been clear at the time of trial, the jury instruction may still have
constituted plain error.
        The instant case, however, differs in an important respect from the procedural histories of
Johnson and Oliver. In those cases, intervening Supreme Court decisions changed the law between
the time of trial and that of the defendants’ appeals. Johnson, 520 U.S. at 467 (explaining that an
intervening decision requiring the issue of materiality to be submitted to the jury made the judge’s
resolution of the issue plain error); Oliver, 397 F.3d at 379 (explaining that the Supreme Court’s
Nos. 02-1386/1461/1570                United States v. Gabrion, et al.                           Page 31


decision in Booker made clear that the defendant’s sentence in district court violated his Sixth
Amendment rights). By contrast, in the instant case, no intervening Supreme Court or Sixth Circuit
decision has made plain the error in the jury instruction’s description of the relationship between
federal ownership of land and federal criminal jurisdiction. The only decision to make clear that
error is our judgment today.
        We do not need to resolve this issue today, however, because even if we were to conclude
that the jury instructions constituted plain error, the error did not affect Gabrion’s substantial rights.
“In most cases [for an error to affect a defendant’s substantial rights] the error must have been
prejudicial.” United States v. Webb, 403 F.3d 373, 382 (6th Cir. 2005) (quoting Olano, 507 U.S.
at 734), cert. denied, 546 U.S. 1126 (2006). All the evidence at trial related to the prosecution’s
theory that Gabrion drowned Timmerman in the southern portion of Oxford Lake over which the
federal government has criminal jurisdiction. In addition to the physical evidence regarding the
location and condition of Timmerman’s body when it was discovered, the testimony of the coroner,
and the testimony of Westcomb, Wismar, and Michael Gabrion, Jr., additional evidence also placed
Gabrion at or near Oxford Lake. Pearl Hall and Ron Hall testified that when they were driving to
Oxford Lake in June 1997 in preparation for turtle-trapping season, they encountered a pick-up truck
driven very fast in the other direction, with a boat sticking out the back of it. J.A. at 1252-59 (Trial
Tr. at 1306-32). Pearl Hall testified that Gabrion was driving the truck. J.A. at 1256 (Trial Tr. at
1320: 16-19). Ron Hall testified that when he subsequently got out of his own vehicle to look at the
lake, he saw “marks where someone had drug [sic] one [boat] out of there.” J.A. at 1261 (Trial Tr.
at 1333: 6). Kathy Kirk testified that when she visited Oxford Lake with her mother in June 1997,
they saw at the lake a pick-up truck with a boat in the back with two men and one woman in it. J.A.
at 1396-1401 (Trial Tr. at 1574-79). Kirk testified that Gabrion was one of the men in truck that
day, J.A. at 1401 (Trial Tr. at 1579: 3-14), and that she recognized the woman later when she saw
her pictures in the news as the woman drowned in Oxford Lake (Timmerman). J.A. at 1404 (Trial
Tr. at 1582: 1-11).
         I therefore agree with the government that the theory of the prosecution and the
government’s evidence made it permissible for the district court to instruct the jury that if Gabrion
murdered Timmerman on federally owned property, then he did so within the special maritime and
territorial jurisdiction of the United States. An instruction that referenced other parcels of federally
owned land within the Manistee National Forest and the jurisdictional consequences of that land
would perhaps have confused the jury. Gabrion argues that the prosecution also presented evidence
regarding the two-track roads that lead to Oxford Lake, which cross parcels of land over which the
federal government does not have jurisdiction. See J.A. at 1015, 1022-25, 1029, 1088, 1105, 1252-
53 (Trial Tr. at 962: 22-23, 981-84, 988: 22-23, 1057: 2-7, 1099: 17-23, 1306-1307). But no
evidence presented by either the prosecution or the defense suggested that Gabrion might have
murdered Timmerman on one of these other parcels of land. Based on the evidence presented at
trial, if the jury found that Gabrion murdered Timmerman on federal property, it must have
necessarily also found that Gabrion murdered Timmerman by drowning her in the southern portion
of Oxford Lake owned by the federal government.
                                         VI. CONCLUSION
        For the reasons explained above, I concur in the judgment affirming the district court’s
holding that the federal government has jurisdiction to prosecute Gabrion pursuant to 18 U.S.C.
§ 1111 in the federal courts. I think that the relevant precedent and facts make clear that 16 U.S.C.
§ 480 does not preclude concurrent federal and state criminal jurisdiction over national forest lands.
Furthermore, because the federal government purchased the Oxford Lake parcel prior to 1940 there
exists a presumption that the federal government accepted legislative jurisdiction over the parcel,
and Gabrion has not presented persuasive evidence rebutting this presumption. Thus, the southern
third of Oxford Lake where the jury concluded that Gabrion murdered Timmerman lies within the
Nos. 02-1386/1461/1570               United States v. Gabrion, et al.                         Page 32


special maritime and territorial jurisdiction of the United States as defined by 18 U.S.C. § 7(3). The
patchwork character of the federal criminal jurisdiction in the Manistee National Forest does not
violate the Fifth or Eighth Amendments. The government presented sufficient evidence for a
reasonable jury to conclude beyond a reasonable doubt that Gabrion murdered Timmerman by
drowning her in the portion of Oxford Lake owned by the federal government. Finally, the district
court’s instructions to the jury did not constitute plain error affecting Gabrion’s substantial rights.
Therefore, the federal government had jurisdiction to prosecute Gabrion for murder pursuant to 18
U.S.C. § 1111.
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                   Page 33


                                                ________________
                                                    DISSENT
                                                ________________
        MERRITT, Circuit Judge, dissenting. Although it may seem at first glance somewhat
counterintuitive to say that the federal courts do not have general or plenary subject matter
jurisdiction over murder and other crimes in the national forests, that is, in fact, the situation. That
is the situation because our system of federalism requires that Congress act by clear positive
legislation to create such criminal jurisdiction, and Congress has not done so. There is no common-
law, federal criminal, subject-matter jurisdiction in national forests or elsewhere, and this concept
has been a part of our  system of checks and balances limiting the power of the federal government
from the beginning.1
        Instead Congress has by positive legislation in 16 U.S.C. § 480 sought affirmatively to
maintain the jurisdictional status quo ante when the federal government acquires and creates
national forest lands. Once the several constitutional and statutory provisions pertaining to federal
legislative and judicial jurisdiction over national forests are parsed and understood, it should become
clear that my colleagues’ solution to the problem will not bear close analysis. Not only that, but my
colleagues’ claim of general federal criminal jurisdiction is directly contrary to the position that the
Forest Service and the Lands Division of the Department of Justice adopted many years ago, as I
will explain at the end of this opinion, once I have led the reader through a reasoned analysis of the
pertinent statutory and constitutional provisions.
                 I. Section 480, Title 16, Specifically Regulates Federal Jurisdiction
                                         Over National Forests
       The subject-matter jurisdiction defense raised by the defendant Gabrion is based on the
“Organic Administration Act of 1897,”2 combined with the “Weeks Act” of 1911, which are now
codified together as 16 U.S.C. § 480:
         The jurisdiction, both civil and criminal, over persons within national forests, shall
         not be affected or changed by reason of their existence, except so far as the
         punishment of offenses against the United States therein is concerned; the intent and
         meaning of this provision being that the State wherein such national forest is situated
         shall not, by reason of the establishment thereof, lose its jurisdiction, nor the
         inhabitants thereof their rights and privileges as citizens, or be absolved from their
         duties as citizens of the State.


         1
           See United States v. Hudson & Goodwin, 7 Cranch 32, 34 (1812) (“The legislative authority of the Union must
first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offense.”).
         2
             The Supreme Court has described the purpose of this Act as follows:
             From the various acts relating to the establishment and management of forest reservations it
         appears that they were intended “to improve and protect the forest and to secure favorable conditions
         of water flows.” It was declared that the acts should not be “construed to prohibit the egress and
         ingress of actual settlers” residing therein [and] not “to prohibit any person from entering the
         reservation for all proper and lawful purposes, including that of prospecting, and locating and
         developing mineral resources; provided that such persons comply with the rules and regulations
         covering such forest reservation.” (Act of 1897, c. 2, 30 Stat. 36).
United States v. Grimaud, 220 U.S. 506, 515 (1911).
Nos. 02-1386/1461/1570                 United States v. Gabrion, et al.                            Page 34


(Emphasis added.) The underlined sentence is in the passive voice. The subject is the noun
“jurisdiction” modified by the adjectives “civil and criminal.” This refers to the judicial authority
to adjudicate civil and criminal cases. The verbs are “to change” or “to affect,” and the sentence is
in the negative stating that “jurisdiction” is “not” “changed” or “affected.” The prepositional phase
“within the national forests” modifies the verbs, and the meaning is that the “existence” or creation
of “national forests” will not change the jurisdiction of state or federal courts, i.e., that the status quo
existing before the creation of the national forest concerning jurisdiction will continue after their
creation. The “except” clause limits the duration of that pre-existing state of affairs and makes its
continuation dependent on whether Congress acts to create and define any federal “offenses . . .
therein.” The conditional “except” clause requires Congress to act affirmatively to legislate criminal
offenses “therein.” Unlike legislation with respect to military bases and other federal enclaves,
Congress has not acted affirmatively under the Interstate Commerce, Federal Enclave or Property
Clauses of the Constitution to bring murder in the “national forests” within the “special maritime
and territorial jurisdiction of the United States” or any other category of federal, judicial, subject-
matter jurisdiction. In order for federal offenses within the national forests to exist, the offense must
be a regular federal crime of general nationwide application or a crime specially defined and enacted
by Congress within one or more national forests. The crime of murder is not such a crime.
Congress has not made the crime of murder either generally applicable nationwide or specially
applicable in one or more national forests. There is no federal crime of murder applicable outside
the “special maritime and territorial jurisdiction,” and Congress has not acted to bring the national
forests within that “special jurisdiction” category.
         Rejecting this common sense interpretation based on our federalist tradition, the main thrust
of the separate opinions of both Judge Batchelder and Judge Moore is that § 480 on national forests
itself somehow provides the necessary plenary, federal “concurrent” criminal subject matter in
national forests. They derive such broad federal criminal jurisdiction directly from § 480. That
statute is the basic source of their argument in favor of jurisdiction. Using § 480 they would read
the “special maritime and territorial jurisdiction of the United States” to include all such forest lands.
        Section 480 applies specifically and only to “national forests,” not to any other government
lands. It states flatly and unequivocally that no change in the status quo ante respecting federal and
state criminal jurisdiction shall occur by virtue of the acquisition or designation of lands as a
“national forest.” It specifies expressly that “civil and criminal jurisdiction” in national forests,
other than for general federal “offenses” applicable in the country at large, is not “affected” and does
not “change” when lands become part of the national forests.
        The only way my colleagues can arrive at their conclusion is by holding that only “state
jurisdiction” does not change when a national forest is created, but that is not what the section says.
Section 480 does not say that only “state jurisdiction” shall not change. It says “the jurisdiction,
both civil and criminal” shall not change as a result of federal acquisition of forest land. This
language includes both state and federal jurisdiction over forests, and that interpretation has become
well-settled by the administrative practices of the Forest Service and the Department of Justice over
the past 100 years, as explained later.
         Federal jurisdiction under § 480 exists only for “offenses” of general nationwide or special
local application which are criminalized by a specific federal statute. In other words, the language
in § 480, “except so far as the punishment of offenses against the United States therein is
concerned,” means that offenses that are federal regardless of where the crime is committed within
the United States are federal offenses in national forests — for example, crimes like bank robbery,
counterfeiting, the sale of illegal drugs, murder of federal law enforcement officers, use of interstate
facilities to commit murder for hire, and other crimes of general, nationwide application, i.e., regular
federal crimes. In addition, “offenses” would include crimes specifically described and enacted by
Congress for local application in one or more national forests. The federal statute at issue in this
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                     Page 35


case, § 1111, cannot fall within the “except” clause of § 480 because § 1111(b) requires that the
murder occur within “the special maritime and territorial jurisdiction of the United States,” which
in turn requires that Congress act to create “exclusive or concurrent jurisdiction.” Congress has not
asserted in § 480 or elsewhere either concurrent or exclusive3 jurisdiction in such cases;
consequently, no territorial jurisdiction exists as defined by § 7(3).
        The apparent policy behind § 480 is that the national forests make up such a large percentage
of the United States that it would be impossible to effectively enforce all criminal laws therein
without establishing a large national police force. These lands comprise 193 million acres or 8.5%
of the total land area of the United States. National forests extend across the nation from Hawaii,
California and Alaska to Maine, Florida and Puerto Rico. Manistee National Forest itself occupies
several counties in Western Michigan and includes private farms, lakes and home sites. The
consistent administrative practice of the Forest Service and the Department of Justice, as described
in Section III of this opinion, support this policy of relying on state criminal jurisdiction rather than
federal jurisdiction. In addition, it would obviously be inconsistent with the long tradition of
federalism and plenary state criminal jurisdiction for the government to take over the responsibility
(without a clear federal statute) for law enforcement in such large, noncontiguous, scattered groups
of lands throughout the United States, areas in which cities, villages, residences, farms and other
private lands are interspersed with public forest lands, logging trails, recreation facilities and lakes.
        Another section of the same federal, national forest statute, provides a limited misdemeanor
exception to the “no-change-in-jurisdiction” rule of § 480 by delegating to the Secretary of
Agriculture authority to “make such rules and regulations . . . to regulate their occupancy and use
and to preserve the forests thereon from destruction.” 16 U.S.C. § 551. The statute authorizes a
punishment for violations of such regulations of “not more than $500 or imprisonment for not more
than six months” with the case to be “tried and sentenced by any United States magistrate judge




         3
           My colleagues assert § 480 federal criminal jurisdiction over this federal death penalty case in the national
forest under the so-called “special maritime and territorial jurisdiction of the United States” referred to in 18 U.S.C. §7(3)
and 18 U.S.C. § 1111. Section 7(c) defines and limits the “special maritime and territorial jurisdiction” to lands owned
by the government over which Congress has created “exclusive or concurrent jurisdiction”:
         §7. The term “special maritime and territorial jurisdiction of the United States,” as used in this title,
         includes “(1) [Waters within the admiralty and maritime jurisdiction of the United States]. (2)
         [Vessels on a voyage on waters connected to the Great Lakes]. (3) Any lands reserved or acquired
         for the use of the United States, and under the exclusive or concurrent jurisdiction thereof . . . .”
(Emphasis added.) My colleagues rely on § 1111(b) of Title 18, which limits criminal jurisdiction to impose the death
penalty to first degree murder cases committed on government property over which the government has created
“exclusive or concurrent jurisdiction,” the jurisdiction required by § 7(3) above. Section 1111(b) limits such federal
criminal subject matter jurisdiction as follows:
         (b) Within the special maritime and territorial jurisdiction of the United States, whoever is guilty of
         murder in the first degree shall be punished by death or by imprisonment for life . . . .
(Emphasis added.) To create federal criminal jurisdiction, § 1111 is totally dependent on § 7(3), which requires a federal
law creating “exclusive or concurrent jurisdiction” over the “required” lands. There cannot be federal criminal
jurisdiction in national forests under § 1111 unless Congress acts by positive law to assert such jurisdiction. Section 480
does the exact opposite saying that “no change” shall occur as the result of the creation of a national forest.
Nos. 02-1386/1461/1570                        United States v. Gabrion, et al.                                     Page 36


. . . .” Id. This statute provides an exception to the “no change” rule of § 480,4 but there is no
similar federal statute creating any type of federal felony jurisdiction over national forest laws.
        Section 480 itself creates a specific national forest exception to a more general, statutory rule
regarding acceptance of exclusive or concurrent jurisdiction over government lands. The more
general statutory rule was first established by statute in 1940. It provides that concurrent federal law
enforcement jurisdiction over “lands or an interest in land it acquires” may only be accepted by the
federal government     by the filing of formal notice that the government in fact accepts such
jurisdiction.5 The statute provides for a procedure by which federal exclusive or concurrent
jurisdiction may be acquired. The statute, 40 U.S.C. § 255 (now codified as 40 U.S.C. § 3112),
reads as follows:
         § 3112. Federal jurisdiction.
         (a) Exclusive jurisdiction not required. It is not required that the Federal
         Government obtain exclusive jurisdiction in the United States over land or an interest
         in land it acquires.
         (b) Acquisition and acceptance of jurisdiction. When the head of a department,
         agency, or independent establishment of the Government, or other authorized officer
         of the department, agency, or independent establishment, considers it desirable, that
         individual may accept or secure, from the State in which land or an interest in land
         that is under the immediate jurisdiction, custody, or control of the individual is
         situated, consent to, or cession of, any jurisdiction over the land or interest not
         previously obtained. The individual shall indicate acceptance of jurisdiction on
         behalf of the Government by filing a notice of acceptance with the Governor of the
         State or in another manner prescribed by the laws of the State where the land is
         situated. [No official of the federal government has ever filed such a notice with the
         State of Michigan asserting concurrent jurisdiction.]
         (c) Presumption. It is conclusively presumed that jurisdiction has not been accepted
         until the Government accepts jurisdiction over land as provided in this section.
(Emphasis added.) The 1940 statute modified a previous, judicially-created rule that in some
circumstances the courts would “presume” that the federal government had accepted concurrent
jurisdiction from a state if the government agency in charge of the land did not expressly refuse to
accept jurisdiction offered by the state. See Adams v. United States, 319 U.S. 312, 315 (1943)
(setting aside under § 255 [now § 3112] the rape convictions of three soldiers at a military base

         4
           The National Forest Service has exercised the delegation of authority granted by this statute. See 36 C.F.R.
§ 261 — “Prohibitions” (prohibiting interfering with Forest Service officers, disorderly conduct, cutting timber and
similar behavior in national forests and regulating the use of motor vehicles, fishing and hunting, etc.) No regulation
issued by the Forest Service purports to accept concurrent jurisdiction under the Assimilative Crimes Act or create
federal subject matter jurisdiction to enforce state criminal laws in federal court. The regulations follow the rule of § 480
that provides for no change in civil and criminal jurisdiction by virtue of the “existence” of national forests.
            The National Park Service within the Department of the Interior operates under a quite different system of
concurrent legislative jurisdiction which depends on contracts with state governments approved by a congressional
committee. See 16 U.S.C. § 1a-3. (“The Secretary shall diligently pursue the consummation of arrangements with each
State . . . to the end that insofar as practicable the United States shall exercise concurrent legislative jurisdiction within
units of the National Park System”).
         5
           In 1923, the State of Michigan by statute granted to the United States “concurrent jurisdiction . . . in and over
lands so acquired” for national forests. MICH. COMP. LAWS § 3.401 (2007). All concede that the federal government
has never accepted such jurisdiction by notice or other action.
Nos. 02-1386/1461/1570                United States v. Gabrion, et al.                          Page 37


because the government had not accepted exclusive or concurrent jurisdiction and “concurrent
jurisdiction can be acquired only by the formal acceptance prescribed in the Act”); Fort
Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 528 (1885) (acceptance of concurrent jurisdiction may
sometimes be “presumed” if the federal government does not object to a state’s cession of
jurisdiction and no statute forecloses acceptance); United States v. Johnson, 426 F.2d 1112, 1114-15
(7th Cir. 1970) (affirming a burglary conviction in a Veterans Administration hospital on land
acquired for naval purposes in 1918 on ground that concurrent jurisdiction would be “presumed”
in the absence of an objection by the federal government). Because § 480 expressly forbids and
preempts such a presumption of jurisdiction (federal “jurisdiction . . . within national forest shall not
be affected or changed”), neither the pre-1940, rebuttable “presumption” of concurrent jurisdiction
nor the post-1940 conclusive presumption against concurrent jurisdiction has ever been applied to
national forests. Notwithstanding my colleagues’ argument to the contrary, it is clear that section
480 specifically covering national forests is an exception to § 255 [now § 3112] which is applicable
to other federal lands but not national forests. Even if § 255 could somehow be held applicable to
the national forests, it could not create federal concurrent jurisdiction because it creates a conclusive
presumption against such jurisdiction and because the forest service has consistently denied such
jurisdiction, as will be discussed in Section III below.
                II. My Colleagues’ Opinions are Mistaken about the Meaning
                                of §§ 480, 1111, 7(3) and 255
        In opposition to the analysis and arguments outlined above, Judges Batchelder and Moore
randomly cite seven principal cases and two constitutional provisions (the “Property” and “Federal
Enclave” Clauses), as well as two statutes discussed above (18 U.S.C. § 1111 and 40 U.S.C. § 255
[now § 3112]). I will discuss each one of the arguments they make and the principal authorities they
rely on.
        The citation and reliance on United States v. California, 655 F.2d 914 (9th Cir. 1980), for
the proposition that federal courts automatically have concurrent jurisdiction with the states over
national forests is misplaced and indicates their confusion about the meaning of § 480. In that case
the federal government sued the State of California as plaintiff because State actors negligently
started a fire in a national forest. Although the federal courts clearly have jurisdiction of such
actions under 28 U.S.C. § 1345 (providing for “original jurisdiction of all civil actions, suits or
proceedings commenced by the United States”), the court dismissed the action because the
government failed to bring its negligence action within the appropriate statute of limitations. In
passing, the court mentioned that it is the states, not the federal government, which have general
“criminal and civil jurisdiction over national forests” under § 480. The Ninth Circuit in its dicta is
simply saying — as I would hold here in respect to criminal cases — that if there is a federal statute
of general nationwide application that gives federal courts civil jurisdiction over tort cases in a
national forest, as does § 1345 when the federal government is the plaintiff, then federal civil
concurrent jurisdiction exists along with state court concurrent jurisdiction. But if there is no federal
statute like § 1345 on the civil side or a general, federal, criminal statute like one forbidding bank
robbery or drug distribution or § 551 discussed above on the criminal side, then there is no federal
jurisdiction. That is what § 480 means when it says no federal civil or criminal jurisdiction exists
“except so far as the punishment of offenses against the United States.” The Ninth Circuit’s
interpretation of § 480 in the California case is the same as my analysis and contrary to my
colleagues’ interpretation.
        Likewise, my colleagues are mistaken when they say that 18 U.S.C. § 1111(b) provides
federal jurisdiction over murder cases in national forests. Section 1111(b) only criminalizes murder
within the “special maritime and territorial jurisdiction” covered by § 7(3), not within the national
forests. Section 7(3) in turn defines this “special” jurisdiction as federal lands which by statute have
been placed under the “exclusive or concurrent jurisdiction” of the federal government. My
Nos. 02-1386/1461/1570                United States v. Gabrion, et al.                           Page 38


colleagues fail to understand that in order to create murder or other criminal jurisdiction in the
national forests Congress must act to do so. Instead, in § 480, Congress has expressed the opposite
intent. Neither § 7(3), nor § 1111, mentions or purports to create jurisdiction over national forests,
and § 480 expresses a clear intent to leave in place the status quo excluding such federal criminal
jurisdiction and leaving it up to the states to deal with such cases, as has been the consistent practice
since the national forests were established more than 100 years ago.
          My colleagues also appear to suggest that the Constitution itself may directly — in a self-
executing manner — somehow give the federal courts jurisdiction over murders in national forests.
They seem to believe that the Federal Enclave Clause, Article I, Section 8, Clause 17 itself, without
further federal legislation, creates federal criminal jurisdiction over murder cases in the Manistee
National Forest. This Clause just gives Congress the power to create federal criminal jurisdiction
over lands “purchased . . . for the erection of forts, magazines, arsenals, dock yards, and other
needful building.” Congress must exercise that power by legislation. The clause is not self-
executing. It requires an act of Congress. In § 480 Congress has explicitly acted to decline such
general jurisdiction “within national forests,” stating clearly that “civil and criminal jurisdiction .
. . shall not be affected or changed” by virtue of the acquisition of national forest lands. In this case,
the government does not and would have no basis to claim that it has acquired such jurisdiction
under this Clause of the Constitution, and no case authority exists for the exercise of such federal
criminal jurisdiction under this Clause.
        Likewise, the Property Clause (“Congress shall have power to dispose of and make all
needful rules and regulations respecting . . . property belonging to the United States,” Article IV,
Section 3, Clause 2) requires an act of Congress to create general federal criminal jurisdiction over
ordinary murder cases in the national forests. This clause is not self-executing. Congress must act
positively by statute to create such jurisdiction.
        Kleppe v. New Mexico, 426 U.S. 529 (1976), is the case relied upon by both judges in
arguing that the Property and Federal Enclave Clauses create federal criminal felony jurisdiction in
national forests. In Kleppe, the Supreme Court simply upheld the constitutionality of the Wild Free-
roaming Horses and the Burros Act of 1971, insofar as it prohibited the state livestock board in New
Mexico from entering public lands of the United States and removing wild burros under the State’s
estray laws. The case recognizes that the Property and Enclave Clauses are not self-executing and
require specific legislation in order to regulate and create federal jurisdiction over public lands.
Both judges rely heavily on Kleppe. Judge Batchelder argues for direct federal criminal subject
matter jurisdiction from the Court’s statement in Kleppe that the federal government may “apply
derivative legislative power from a state pursuant to the [Enclave Clause] . . . by consensual
acquisition of land, or by . . . the state’s subsequent cession of legislative authority over the land.”
426 U.S. at 542. The Kleppe opinion is clear that the Court is referring to “legislative jurisdiction”
which must be exercised by statute before it is turned into federal, criminal, subject-matter, judicial
jurisdiction. My colleagues appear to confuse “legislative jurisdiction” or authority, i.e.,
constitutional authority, with federal, judicial, subject-matter jurisdiction, which may only be created
by positive action of Congress.
        This confusion becomes absolutely clear in footnote 5 of Judge Batchelder’s opinion in
which she has somehow persuaded herself to believe that § 480 is only referring to “legislative
jurisdiction,” not to “the federal court’s subject matter jurisdiction.” She states that “only . . .
legislative jurisdiction . . . is actually at issue or determinative in this case.” This indicates a
complete misunderstanding of the issue before us. No one denies that Congress has “legislative
jurisdiction” over the national forests. The Interstate Commerce, Property and Federal Enclave
Clauses each provide for some legislative jurisdiction over national forests. The only question is
whether Congress has acted to create “federal court’s subject matter jurisdiction” over a murder case
in the national forests. It is no wonder that my colleagues are mistaken in their answer to this
Nos. 02-1386/1461/1570                      United States v. Gabrion, et al.                                    Page 39


question when they think that the issue is one of the existence of “legislative jurisdiction.” They are
both quite right that there is “legislative jurisdiction” but quite wrong that there is “federal court
subject matter jurisdiction.”
        Likewise, my colleagues are mistaken in finding support for federal jurisdiction over murders
in national forests in United States v. Raffield, 82 F.3d 611 (4th Cir. 1996). There the Fourth Circuit
in a doubtful holding stated that “the state and federal governments . . . enter[ed] into a relationship
of concurrent jurisdiction” because “the Assimilative Crimes Act specifically contemplates
convictions for ‘operating a motor vehicle under the influence of a drug or alcohol’ while on federal
lands. 18 U.S.C. § 13(b)(1).” Id. at 613. The question of the treatment of drunk driving in national
forest lands is not before us in the instant case. The Assimilative Crimes Act has provisions
authorizing federal misdemeanor jurisdiction regulating traffic infractions, and § 551 of the Weeks
Act has a misdemeanor provision for driving violations in national forests. Neither Act authorizes
federal jurisdiction over felonies. The national forest regulations issued under § 551 make drunk
driving in a national forest a federal misdemeanor. Section 13(b) of the Assimilative Crimes Act
states:
         (1) Subject to paragraph (2) and for purposes of subsection (a) of this section, that
         which may or shall be imposed through judicial or administrative action under the
         law of a State, territory, possession, or district, for a conviction for operating a motor
         vehicle under the influence of a drug or alcohol, shall be considered to be a
         punishment provided by that law. Any limitation on the right or privilege to operate
         a motor vehicle imposed under this subsection shall apply only to the special
         maritime and territorial jurisdiction of the United States.
         (2)(a) In addition to any term of imprisonment provided for operating a motor
         vehicle under the influence of a drug or alcohol imposed under the law of a State,
         territory, possession, or district, the punishment for such an offense under this
         section shall include an additional term of imprisonment of not more than 1 year, or
         if serious bodily injury of a minor is caused, not more than 5 years, or if death of a
         minor is caused, not more than 10 years . . . .
(Emphasis added.) The Raffield case based its drunk driving jurisdiction on this specific language,
a doubtful holding unless the Court intended to rely on § 551 which relates specifically to national
forests. The Raffield case criminalizing drunk driving in a national forest is not on point. There is
no language in § 13(b) or § 551 that would in any way alter §6 480's rejection of concurrent
jurisdiction in the national forest for murder or other state felonies. My colleagues, therefore, err
in “presuming” or implying general federal jurisdiction over state felonies in national forests based
on the Raffield drunk driving case — if, in fact, this is my colleagues’ purpose in citing the case.
         Neither does the case of Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir. 1995), have
anything whatever to do with the question in this case. First, in Stupak the en banc court issued no
authoritative ruling because it split four to four, which resulted in an affirmance of the District
Court. Second, the question in the case had to do with the governmental regulation of riparian or
littoral rights in private property owners in the Sylvania Wilderness Area under the Michigan
Wilderness Act, Public Law No. 100-184, 101 Stat. 1274 (1987), and the Wilderness Act of 1964,
16 U.S.C. § 1132(b). Congress clearly and specifically acted by positive law to create limited

         6
            In a recent decision, the Tenth Circuit held that federal jurisdiction did exist for a murder committed in a
national forest despite the defendant’s objections that § 480 precludes such an exercise of jurisdiction. See United States
v. Fields, No. 05-7128, 2008 U.S. App. LEXIS 4018 (10th Cir. Feb. 25, 2008). The Tenth Circuit’s treatment of § 480
mirrors that of my colleagues and similarly misunderstands that the Weeks Act specifically preserved the status quo ante
absent Congressional action.
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federal jurisdiction. In the Michigan Wilderness Act, Congress clearly authorized the Department
of Agriculture to engage in the regulation of water craft and pollution in the Sylvania Wilderness
Area. Third, § 480 and the question of subject matter jurisdiction in national forests were never
mentioned in the case and would have been completely irrelevant to any possible issue presented
there.
        Equally strange is the reliance on Hawkins v. Delo, 977 F.2d 396 (8th Cir. 1992). In that
case the Eighth Circuit held that it was the state government that had jurisdiction over murder in the
national forests in opposition to the habeas petitioner’s argument in a capital murder habeas case
from the State of Missouri that the state court lacked jurisdiction over a murder committed in the
Mark Twain National Forest. In direct opposition to my colleagues’ claim, the Eighth Circuit said
that “even when the state purports to cede land to the federal government, the United States does not
have jurisdiction unless it accepts it,” 977 F.2d at 398, a conclusion equivalent to holding that only
the state had jurisdiction over murder cases in the Mark Twain Forest — the same conclusion I reach
here.
        The cases of Silas Mason Co. v. Tax Commission, 302 U.S. 186 (1937), and Benson v. United
States, 146 U.S. 325 (1892), also have no bearing on this case. They do not even involve
jurisdiction in national forests or purport to deal with § 480 or any law relevant to national forests.
        Finally, my colleagues’ expansion of “concurrent,” federal, subject-matter jurisdiction in the
national forests to include state criminal laws would make all of the laws of the states referred to in
§ 13 (the Assimilative Crimes Act) apply as federal crimes in federal court: State laws ranging from
zoning and land use to hunting and fishing to auto, driver’s and occupational licensing would all
create federal judicial jurisdiction — an unheard of expansion of federal jurisdiction that would
create general federal court jurisdiction over the enforcement of all state laws in all 193 million acres
of the national forests.
              III. The Administrative Agency in Charge of the National Forests
                  Has Consistently Opposed Federal Concurrent Jurisdiction
        In the past the U.S. Department of Agriculture, which operates the national forests, as well
as the Department of Justice and other agencies of the federal government, have interpreted § 480
to preclude federal jurisdiction over general state crimes like murder committed in national forests.
The record reflects the following legislative, executive and administrative agency opinions stating
that § 480 negates and prohibits the exercise of either exclusive or concurrent federal jurisdiction
over state crimes committed in national forests.
    1. Opinion of Robert H. Shields, Solicitor General, U.S. Department of Agriculture,
              Opinion 4311, July 18, 1942, (filed as Defendant’s Exhibit B):
        “It is our opinion, therefore, that § 480, supra, precluded the exercise of concurrent
jurisdiction as well as exclusive jurisdiction by the United States over national forest lands . . . .”
      2. Opinion of Attorney General Herbert Brownell, Jr., to President Eisenhower,
         April 27, 1956, Re: “Jurisdiction Over Federal Areas Within the States”
                             (filed as Defendant’s Exhibit D):
         The Attorney General’s report notes: “Where the Federal Government has no legislative
jurisdiction over its land, it holds such land in a proprietorial interest only and has the same rights
in the land as does any other landowner.” Defendant’s Exhibit B, p. 21. The report notes at pages
64 and 101 that the Department of Agriculture Forest Service holds almost all of its lands in
“proprietorial” ownership.
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3. Follow-Up Opinion of Attorney General Herbert Brownell, Jr. to President Eisenhower,
          June, 1957, Re: “Jurisdiction Over Federal Areas Within the States”
                         (filed as Defendant’s Exhibit E p. 114):
        “State criminal jurisdiction retained. — State criminal jurisdiction extends into
        areas owned or occupied by the Federal Government, but as to which the
        Government has not acquired exclusive legislative jurisdiction with respect to
        crimes. And as to many areas owned by the Federal Government for its various
        purposes it has not acquired legislative jurisdiction. The forest service of the
        Department of Agriculture, for example, in accordance with a provision of Federal
        law (16 U.S.C. 480), has not accepted the jurisdiction proffered by the statutes of
        many states, and the vast majority of federal forest lands are held by the Federal
        Government in a proprietorial status only.”
Id. at 114.
   4. Opinion of W. Mone, Office of General Counsel, U.S. Department of Agriculture,
                       May 29, 1963, (Defendant’s Exhibit H):
        “The United States has neither concurrent or exclusive jurisdiction over the national forest
lands, but holds such lands in a proprietary capacity only. (Reference: Op. Sol. 2979, dated
December 18, 1940; Op. Sol. 4311, dated July 18, 1942; and Op. Sol. 4658, dated April 27, 1943.)
The proprietary capacity means merely that the United States owns the land, insofar as legislative
and law enforcement jurisdiction is concerned, in the same manner that an individual owns land . . . .
In no case where national forest lands, acquired under the Weeks Law, are involved have there been
jurisdiction accepted by the United States.”
    5. Report on “Federal Legislative Jurisdiction” of the Public Land Law Review
  Commission, incorporating the Report and opinion of the Land and Natural Resources
                Division of the U.S. Depart of Justice, September, 1969.
      The Public Land Law Review Commission consisted of 18 members, 6 each
                 appointed by the Senate, the House and the President
                         (filed as Defendant’s Exhibit 3, p. 77):
“The Weeks Forestry Act of 1911 (16 U.S.C. § 480), a statute which authorizes acquisition of
privately owned land for national forest purposes, provided against change of jurisdiction by reason
of such acquisition.” The report at page 75 lists “only seven of the Forest Service’s 245 properties
[that] contain other than proprietorial jurisdiction,” none of which are in the Manistee National
Forest. These seven are exceptions because the federal government had previously acquired them
as arsenals, military bases or courthouses over which it has asserted concurrent or exclusive
jurisdiction before converting them to national forest lands.
                                               *    *   *
        I believe that the language of section 480 itself is clear that federal jurisdiction does not exist
in murder cases in national forests, including the Manistee National Forest. Basically, the statute
says that such cases should be tried in state court because ordinary criminal jurisdiction “shall not
be affected or changed.” But if there were ambiguity or doubt, well settled principles of
administrative law require that we give deference to administrative interpretations of statutes that
the agency administers, for as Justice Stevens wrote for the Court in Chevron U.S.A. v. Natural Res.
Def. Council, 467 U.S. 837, 844 (1984):
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              We have long recognized that considerable weight should be accorded to an
       executive department’s construction of a statutory scheme it is entrusted to
       administer, and the principle of deference to administrative interpretations
                       “has been consistently followed by this Court whenever
              decision as to the meaning or reach of a statute has involved
              reconciling conflicting policies, and a full understanding of the force
              of the statutory policy in the given situation has depended upon more
              than ordinary knowledge respecting the matters subjected to agency
              regulation [citations omitted].”
        Therefore, the clear language of § 480 itself, plus the consistent administrative interpretation
of the statute over the last 100 years, leaves no room for doubt as to the question of jurisdiction in
this case. The federal government has not heretofore asserted or accepted concurrent jurisdiction
over murder cases or other state-law-type felony cases in the national forests. Normal principles of
federalism still apply, leaving such crimes to the state courts to deal with under state laws.
        In the face of the clear language of § 480 rejecting federal concurrent jurisdiction in national
forests, longstanding principles of federalism relying on the states for general enforcement of the
criminal law, the policy reasons against creating a large national forest service police force to
enforce state laws, and the longstanding rejection of such jurisdiction by federal executive agencies,
the District Court, the government and my colleagues have erred in “presuming” federal jurisdiction
and giving § 480 a meaning opposite to congressional intent to maintain the status quo ante
regarding general criminal jurisdiction in the national forests.
