Enforcement of State Environmental Crimes on the Federal Enclave

• Author: H. Allen Irish
• Pages: 04

ENFORCEMENT OF STATE

ENVIRONMENTAL CRIMES ON THE

FEDERAL ENCLAVE

by

H.

Allen Irish'

I.

INTRODUCTION

Throughout this nation's history, military installations, naval bases,

and

other

federal

enclaves

effectively haw remained islands

un-

touched by the changing tides of federal-state relations? States

seldom have attempted to enforce their criminal

laws

on

federal

in-

stallatmns.

Moreover,

a

number of federal

court

decisions have held

that states are

powerless

to do

m2

Nevertheless, the widely-held

perception that activities occurring

on

federal enclarei have been

granted bianket

immunity

from

state regulation and state criminal

jurisdiction probably is based

on

a

misunderstanding of the constitu-

tional basis of federal control of these

enclaves.

In the

area

of

en-

vironmental regulation, recent court decisions have opened the door

to expanded state control

over

actnities occurring

on

the federal

enclave--a control that potentially could include criminal enforce-

ment.

As

used

m

this

anlcle

the

term

'federal

enclave

refer!

to

real

pmpen)

Obtained

and

held

hi

the

federal

government

punuanl

10

en

I

g

6,

el

17

of

the

United

States

COnStltUIl""

'See,

eg

United

Srates

1

Enruela

281

L

S

138

(1830)

249

MILITARY

LAW

REVIEW

[Vol

133

11. PRINCIPLES

OF

FEDERAL

JURISDICTION

The

federal go>ernment's power to hold lands3

for

mihtan.

installa-

tions and for

carrying

out certain of its designated

powers

IS

con-

tamed

~n

article

I,

section

8

clause

17,

of the United States

Con-

stitution, which reads

as

follows

The

Congress

shall ha\e the power

ltjo

exercise

exciume

Legislation

in

all

Cases

whatsoever, over such District (not

ex-

ceeding ten Miles

square)

ar

may,

by

Cession

of pamcular Slates.

and the Acceptance of

Congress,

become

the Sear of the

Garern-

ment of the United States. and to

exercise

lrke

Authority

over

all

Placer

purchased

bs

the Consent of the Legislature of the

Stare

in

which the same shall

be.

for the Erection of Forts

Xlagannes. Anenals,

dock-Yards and other needful Build-

mgs.

4

Obviousl>. however, the nature

of

forts,

magazines, and

arsenals

has

changed drastically since that provision

has

considered at the

Con-

stitutional Convention in

178i

Origlnall)

consistmg of modest Stone

and woad fortifications and drilling grounds for

a

small

number

of

federal troops the United States

Army.

Xavy>

41r

Force.

and

Marines

have evolved

into

enormous

enterprises consisting of hundreds of

thousands of structures and millions of

men

and

w'ornen5

operating

on

military installations covering

a

combined

area

larger than many

of

the

anglnal

thirteen states.b The drafters of the Constitution could

not hare envisioned that the changing

nature

of warfare would.

in

the future. produce

military

faclhtles

on

the

size and

scale

of Fort

Hood.

Texas.

or

Fort

Irwin. California

Nor

would the founders hare

been

able to anticipate that the environmental impact of the

ac-

tivities taking

place

on

those installations and

on

their surrounding