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

Filed:

Submitted on Briefs: November 17, 1994

Decided: February 15, 1995

Cle&k
Justice James C. Nelson delivered the Opinion of the Court

Appellant, Wayne Thomas Wagner, filed a petition for postconviction 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 postconviction 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 postconviction 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