NO. 94-199
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
WAYNE THOMAS WAGNER,
Petitioner
v.
STATE OF MONTANA,
Respondent
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Wayne Thomas Wagner, Littleton, Colorado (pro se)
For Respondent:
Scott B. Spencer, Lincoln County Attorney, Libby,
Montana; Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Assistant Attorney General, Helena,
Montana
Submitted on Briefs: November 17, 1994
Decided: February 15, 1995
Filed:
Cle&k
Justice James C. Nelson delivered the Opinion of the Court
Appellant, Wayne Thomas Wagner, filed a petition for post-
conviction relief in the Nineteenth Judicial District Court,
Lincoln County. Wagner appeals from the District Court's dismissal
of his petition. We affirm.
The issue on appeal is whether the District Court erred in
dismissing Wagner's petition for post-conviction relief.
On August 17, 1988, United States Forest Service officials
were conducting a surveillance of property which was being used for
the cultivation of marijuana. As the United States Forest Service
officials were observing the property, Wagner drove towards the
marijuana field on a motorcycle, carrying a duffle bag. After
following him to an illegal camp on forest service property, the
officials approached Wagner who immediately fled from the camp.
Wagner left behind a duffle bag and two baggies containing
marijuana.
The camp was searched pursuant to a search warrant, further
evidence was seized, and the Lincoln County Justice Court issued an
arrest warrant for Wagner. Wagner was served with the arrest
warrant on August 26, 1988. On September 6, 1988, Wagner pled
guilty to the charge of criminal possession with intent to sell.
Wagner was sentenced on September 29, 1988.
On September 27, 1993, Wagner filed a petition for post-
conviction relief with the District Court, alleging that the
District Court lacked subject matter jurisdiction over the criminal
possession charge and that his trial counsel had been ineffective
2
for failing to raise the jurisdiction defense. After considering
the parties' briefs, the District Court issued an order dismissing
the petition on April 7, 1994, for failure to state a claim for
relief. Wagner appeals from this order.
STANDARD OF REVIEW
The facts underlying Wagner's conviction and petition for
post-conviction relief are not in dispute. Rather, Wagner argues
the District Court erred in its legal conclusion when it determined
that the State had subject matter jurisdiction. In reviewing a
district court's denial of post-conviction relief, we will not
overturn the court's legal conclusions if the tribunal's
interpretation of the law is correct. Eiler v. State (1992), 254
Mont. 39, 42, 833 P.2d 1124, 1126.
DISCUSSION
Wagner argues that the State lacked jurisdiction to prosecute
the offense committed within the boundaries of the Kootenai
National Forest. Wagner contends that the United States government
has exclusive jurisdiction over the Kootenai National Forest absent
consent or cession of jurisdiction to the State of Montana.
To determine whether the District Court was correct in
concluding that the State court has jurisdiction within the
Kootenai National Forest, we must examine the federal government's
power under the Property Clause of the United States Constitution,
Article IV, Section 3, ClaUSe 2. The Property Clause provides that
"Congress shall have Power to dispose of and make all needful Rules
3
and Regulations respecting the Territory or other Property
belonging to the United States . . .'I
In Kleppe v. New Mexico (1976), 426 U.S. 529, 96 S.Ct. 2285,
49 L.Ed.2d 34, the United States Supreme Court addressed the
federal government's jurisdictional power under the Property
Clause. The Court observed that states are free to enforce their
criminal and civil laws on federal land so long as these laws do
not conflict with federal legislation passed pursuant to the
Property Clause. The United States Supreme Court stated:
Absent 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. And when Congress so acts, the federal
legislation necessarily overrides conflicting state laws
under the Supremacy Clause. U.S. Const., Art. VI, cl. 2.
(Citations omitted.)
Kleppe 426 U.S. at 543, 96 S.Ct. at 2293, 49 L.Ed.2d at 45.
In California Coastal Com'n v. Granite Rock Co. (1987), 480
U.S. 572, 582, 107 S.Ct. 1419, 1425, 94 L.Ed.2d 577, 591, the
United States Supreme Court reaffirmed its holding in Kleooe that
the states may exercise criminal and civil jurisdiction on federal
lands so long as the laws do not conflict with federal law. The
United States Supreme Court added, "[tlhe Property Clause itself
does not automatically conflict with all state regulation of
federal land." California Coastal Com'n, 480 U.S. at 582, 107
S.Ct. at 1425, 94 L.Ed.2d at 591.
Accordingly, we must address two questions: (1) whether the
State of Montana consented or ceded exclusive jurisdiction to the
United States over lands within the Kootenai National Forest; and
4
(2) whether the federal government has enacted legislation which
has pre-empted state law regarding drug related crimes occurring on
national forests.
The federal government can acquire exclusive jurisdiction over
state land in any one of three ways: (1) excepting the place from
the jurisdiction of the state upon the state's admission into the
Union; (2) by a cession of jurisdiction to the United States by a
state after statehood; or (3) by federal purchase of land with
state consent, pursuant to Article I, Section 8, clause 17 of the
United States Constitution. Fort Leavenworth R.R. Co. v. Lowe
(1885), 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264; State v. Cline
(Okl.Cr. 19581, 322 P.2d 208, 212; State v. Vaughn (Ariz.App.
1989), 786 P.2d 1051, 1054.
The Organic Act of the Territory of Montana, 13 Stat. 85,
established a temporary government for the territory of Montana.
While the Organic Act excepted certain Indian lands from
territorial jurisdiction, no special jurisdictional provision was
made for public lands within the territory. In 1889, the Enabling
Act provided for the establishment of the State of Montana. 25
Stat. 676. Section 4, of the Enabling Act disclaimed on behalf of
the people of the proposed state "all right and title" to the
unappropriated public lands lying within the boundaries of the
proposed state. However, the Enabling Act did not consent or cede
exclusive jurisdiction to the United States over the public lands.
The President of the United States was empowered to create
forest reserves under the provisions of Ch. 561, Sec. 24, 26 Stat.
5
1103 (repealed by 16 U.S.C.A. 5 471 (1976)). President Theodore
Roosevelt established the Kootenai National Forest by presidential
proclamation issued on August 13, 1906. 34 Stat. 3225. However,
the proclamation did not expressly reserve exclusive federal
jurisdiction.
The foregoing demonstrates that the Unites States government
did not specifically reserve exclusive federal jurisdiction.
Finally, we note that pursuant to 16 U.S.C. § 480, the states
retain criminal and civil jurisdiction over national forest land.
See also, United States v. County of Fresno (1977), 429 U.S. 452,
455, 97 S.Ct. 699, 701, 50 L.Ed.2d 683, 687; United States v. State
of California (9th Cir. 1980), 655 F.2d 914, 919.
Next we address whether federal legislation has pre-empted
Montana from prosecuting drug crimes on federal lands. Because of
the Supremacy Clause of the United States Constitution, Article VI,
clause 2, federal legislation necessarily overrides conflicting
state laws. Klenpe, 426 U.S. at 543, 96 S.Ct. at 2293, 49 L.Ed.2d
at 45. The federal government has passed extensive legislation
regarding drug crimes. See e.g., 21 U.S.C. § 801 et. seq.,
Comprehensive Drug Abuse Prevention and Control Act of 1970; 16
U.S.C. 5 55933 et. seq., National Forest System Drug Control Act of
1986. However, 21 U.S.C. 5 903 expressly provides:
No provision of this subchapter shall be construed as
indicating an intent on the part of the Congress to
occupy the field in which that provision operates,
including criminal penalties, to the exclusion of any
State law on the same subject matter which would
otherwise be within the authority of the State, unless
there is a positive conflict between that provision of
6
this subchapter and that State law so that the two cannot
consistently stand together.
Section 45-g-103, MCA, governs the offense of criminal
possession with the intent to sell. This section in no way
conflicts with the statutes concerning drug abuse which are
contained in the federal code, including the statute which makes it
unlawful for any person to knowingly or intentionally distribute or
possess a controlled substance with the intent to distribute. 21
U.S.C. 5 841. Therefore, concurrent viability of both statutes is
possible. Accordingly, we conclude that the federal legislation
has not pre-empted Montana's jurisdiction in this case.
Finally, we note that other courts which have examined this
issue have found state courts retain criminal jurisdiction over
offenses committed on national forest property. See e.g., Hankins
v. State (Mo.App. 1989), 766 S.W.2d 467 (Missouri Court of Appeals
had jurisdiction over homicide occurring in Mark Twain National
Forest). In a case factually similar, the Arizona Court of Appeals
concluded that the state court had jurisdiction over drug
violations occurring in the Tonto National Forest. State v. Quick
(Ariz.App. 1991), 806 P.2d 907.
In the instant case, the District Court relied on Klewwe, and
California Coastal Comm'n, to reach its conclusion that the State
of Montana had subject matter jurisdiction under the facts and
circumstances presented here. Accordingly, the court concluded
that Wagner's counsel was not ineffective for failing to raise the
claim of lack of subject matter jurisdiction. We agree. We hold
that the District Court's interpretation of the law was Correct,
7
and that it properly dismissed Wagner's petition for post-
conviction relief
8
February 15, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Wayne Thomas Wagner
Reg. No. 02632-046
Upper West Unit
9595 West Quincy Avenue
Littleton CO 80123
Scott B. Spencer
County Attorney
5 12 California Avenue
Libby MT 59923
JOSEPH P. MAZUREK
Attorney General
Justice Building
215 N. Sanders
Helena MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA