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AGO 1962 No. 101 - March 13, 1962
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John J. O'Connell | 1957-1968 | Attorney General of Washington


FEDERAL ‑- STATE ‑- JURISDICTION ‑- TITAN MISSILE BASES IN GRANT COUNTY.

The federal government does not have exclusive criminal jurisdiction over the Titan missile bases in Grant county, nor does it have concurrent jurisdiction, since it has not complied with applicable federal law.  However, the state of Washington, in exercising its jurisdiction, may not act in a manner which will embarrass the federal government in the exercise of the powers and functions incident to the public purpose to which the lands are devoted.

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                                                                  March 13, 1962

Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington

                                                                                                              Cite as:  AGO 61-62 No. 101

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office upon a question which we paraphrase as follows:

            Does the federal government have exclusive criminal jurisdiction over the Titan missile bases in Grant county, title to which was acquired by the government in 1959 and 1960?

            We answer your question in the negative.

                                                                     ANALYSIS

            The authority for the federal government to acquire exclusive criminal jurisdiction over areas within the geographical limits of an individual state arises out of Article I, § 8, Clause 17 of the United States Constitution, which provides that Congress shall have the power:

            "To exercise exclusive legislation in all cases whatsoever, over . . . (the District of Columbia), and to exercise like authority over all places purchasedby 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  [[Orig. Op. Page 2]] needful buildings; . . ." (Emphasis supplied.)

            This provision is not self-executing and Congress has passed several acts carrying it into effect.  The present provision, 40 U.S.C., § 255 (1958), was passed in 1940 and states that the United States can accept either partial or exclusive jurisdiction of land purchased, condemned or otherwise acquired by filing an acceptance of jurisdiction with the governor and that:

            ". . . 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."

            The United States Supreme Court construed this statute in Adams v. United States, 319 U.S. 312 (1943).  The case held that this provision set forth the only manner in which the United States can accept jurisdiction and stated on page 314 of its opinion:

            ". . . The Act created a definite method of acceptance of jurisdiction so that all persons could know whether the government had obtained 'no jurisdiction at all, or partial jurisdiction, or exclusive jurisdiction.'"

            The court then stated in relation to the particular case on page 315 that, "Since the government had not given the notice required by the 1940 Act, it clearly did not have either 'exclusive or partial' jurisdiction over the camp area. . . ."

            The court then concluded that the term "partial" jurisdiction as used in the federal statute included the term "concurrent" jurisdiction as used in the state statutes.

            You have advised us that the Air Force has not accepted concurrent jurisdiction, in so far as you have been able to determine, pursuant to the federal statute mentioned above.  Please be advised that your information is correct.  We have been informed by the governor's office that no acceptances have been filed by the federal government involving land in the Grant county area since July of 1945.

            In 1939 the legislature of the state of Washington enacted its present consent statute (chapter 37.04 RCW, chapter 126, Laws of 1939).  Thus all land acquisitions by the federal government, pursuant to Article I, § 8, Clause 17 of the United States Constitution, supra,  [[Orig. Op. Page 3]] which have been made since the enactment of this statute are subject to the consent given by it.  RCW 37.04.020 provides in part:

            "Concurrent jurisdiction with this state in and over any land so acquired by the United States shall be, and the same is hereby, ceded to the United States for all purposes for which the land was acquired; . . ."

            Thus, based upon the holding of the Adams case, supra, and the statutes involved it is our opinion that the federal government has not acquired exclusive or partial criminal jurisdiction over the lands we are here concerned with for two reasons: First, because under the present statute the Washington legislature has tendered concurrent jurisdiction only; second, because the federal government has not purported to accept any legislative jurisdiction whatsoever by filing an acceptance of jurisdiction with the governor in accordance with 40 U.S.C., § 255 (1958).

            It must be noted, however, that hereinbefore we have been discussing only that criminal jurisdiction which the federal government might acquire from the state of Washington and not those jurisdictional powers which the federal government already has by virtue of the United States Constitution.  In other words, even though the federal government is only a proprietor of the Titan missile bases in the Grant county area, it can still exercise exclusive jurisdiction within the sphere of its constitutional powers.  As Mr. Chief Justice Marshall pointed out in McCulloch v. Maryland, 4 Wheat. 316, 405, 406 (1819):

            "If any one proposition could command the universal assent of mankind, we might expect it would be this‑-that the government of the Union, though limited in its powers, is supreme within its sphere of action. . . ."

            Therefore even though the federal government has not obtained exclusive criminal jurisdiction over the lands in question, the jurisdiction of the state of Washington does not entitle it to act in a manner inconsistent with the powers delegated to the federal government by the Constitution of the United States.  Thus the state of Washington can do no act which will embarrass the federal government in the exercise of the powers and functions incident to the public  [[Orig. Op. Page 4]] purpose to which the lands are devoted.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BRUCE W. COHOE
Assistant Attorney General

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