Kleppe v. New Mexico
June 17, 1976

Marshall, J.:

At issue in this case is whether Congress exceeded its powers under the Constitution in enacting the Wild Free-Roaming Horses and Burros Act.


The Wild Free-Roaming Horses and Burros Act (the Act), 85 Stat. 649-651, 16 U.S.C. (Supp. IV) §§ 1331-1340, was enacted in 1971 to protect "all unbranded and unclaimed horses and burros on public lands of the United States"  from "capture, branding, harassment, or death."  The Act provides that all such horses and burros on the public lands administered by the Secretary of the Interior through the Bureau of Land Management (BLM) or by the Secretary of Agriculture through the Forest Service are committed to the jurisdiction of the respective Secretaries, who are "directed to protect and manage [the animals] as components of the public lands . . . in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands." If protected horses or burros "stray from public lands onto privately owned land, the owners of such land may inform the nearest federal marshall or agent of the Secretary, who shall arrange to have the animals removed."

Section 6 of the Act authorizes the Secretaries to promulgate regulations, and to enter into cooperative agreements with other landowners and with state and local governmental agencies in furtherance of the Act's purposes. On August 7, 1973, the Secretaries executed such an agreement with the New Mexico Livestock Board (the Livestock Board), the agency charged with enforcing the New Mexico Estray Law. The agreement acknowledged the authority of the Secretaries to manage and protect the wild free-roaming horses and burros on the public lands of the United States within the State and established a procedure for evaluating the claims of private parties to ownership of such animals.

The Livestock Board terminated the agreement three months later. Asserting that the Federal Government lacked power to control wild horses and burros on the public lands of the United States unless the animals were moving in interstate commerce or damaging the public lands and that neither of these bases of regulation was available here, the Board notified the Secretaries of its intent "to exercise all regulatory impoundment and sale powers which it derives from the New Mexico Estray Law, over all estray horses, mules or asses found running at large upon public or private lands within New Mexico . . . . This includes the right to go upon Federal or State lands to take possession of said horses or burros, should the Livestock Board so desire."

The differences between the Livestock Board and the Secretaries came to a head in February 1974. On February 1, 1974, a New Mexico rancher, Kelley Stephenson, was informed by BLM that several unbranded burros had been seen near Taylor Well, where Stephenson watered his cattle. Taylor Well is on federal property, and Stephenson had access to it and some 8,000 surrounding acres only through a grazing permit issued pursuant to the Taylor Grazing Act, 48 Stat. 1270, as amended, 43 U.S.C. § 315b. After BLM made it clear to Stephenson that it would not remove the burros and after he personally inspected the Taylor Well area, Stephenson complained to the Livestock Board that the burros were interfering with his livestock operation by molesting his cattle and eating their feed.

Thereupon the Board rounded up and removed 19 unbranded and unclaimed burros pursuant to the New Mexico Estray Law. Each burro was seized on the public lands of the United States and, as the director of the Board conceded, each burro fit the definition of a wild free-roaming burro under § 2(b) of the Act. App. 43. On February 18, 1974, the Livestock Board, pursuant to its usual practice, sold the burros at a public auction. After the sale, BLM asserted jurisdiction under the Act and demanded that the Board recover the animals and return them to the public lands.

On March 4, 1974, appellees filed a complaint in the United States District Court for the District of New Mexico seeking a declaratory judgment that the Wild Free-Roaming Horses and Burros Act is unconstitutional and an injunction against its enforcement. A three-judge court was convened. Following an evidentiary hearing, the District Court held the Act unconstitutional and permanently enjoined the Secretary of the Interior (the Secretary) from enforcing its provisions. The court found that the Act "conflicts with . . . the traditional doctrines concerning wild animals," and is in excess of Congress' power under the Property Clause of the Constitution, Art. IV, § 3, cl. 2. That Clause, the court found, enables Congress to regulate wild animals found on the public land only for the "protection of the public lands from damage of some kind." Accordingly, this power was exceeded in this case because "[t]he statute is aimed at protecting the wild horses and burros, not at protecting the land they live on."  We noted probable jurisdiction, and we now reverse.


The Property Clause of the Constitution provides that "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. In passing the Wild Free-Roaming Horses and Burros Act, Congress deemed the regulated animals "an integral part of the natural system of the public lands" of the United States, and found that their management was necessary "for achievement of an ecological balance on the public lands."  According to Congress, these animals, if preserved in their native habitats, "contribute to the diversity of life forms within the Nation and enrich the lives of the American people." Indeed, Congress concluded, the wild free-roaming horses and burros "are living symbols of the historic and pioneer spirit of the West." Despite their importance, the Senate Committee found that these animals "have been cruelly captured and slain and their carcasses used in the production of pet food and fertilizer. They have been used for target practice and harassed for 'sport' and profit. In spite of public outrage, this bloody traffic continues unabated, and it is the firm belief of the committee that this senseless slaughter must be brought to an end."

For these reasons, Congress determined to preserve and protect the wild free-roaming horses and hurros on the public lands of the United States. The question under the Property Clause is whether this determination can be sustained as a "needful" regulation "respecting" the public lands. In answering this question, we must remain mindful that, while courts must eventually pass upon them, determinations under the Property Clause are entrusted primarily to the judgment of Congress.

Appellees argue that the Act cannot be supported by the Property Clause. They contend that the Clause grants Congress essentially two kinds of power: (1) the power to dispose of and make incidental rules regarding the use of federal property; and (2) the power to protect federal property. According to appellees, the first power is not broad enough to support legislation protecting wild animals that live on federal property; and the second power is not implicated since the Act is designed to protect the animals, which are not themselves federal property, and not the public lands. As an initial matter, it is far from clear that the Act was not passed in part to protect the public lands of the United States or that Congress cannot assert a property interest in the regulated horses and burros superior to that of the State. But we need not consider whether the Act can be upheld on either of these grounds, for we reject appellees' narrow reading of the Property Clause.

Appellees ground their argument on a number of cases that, upon analysis, provide no support for their position...."While we do not undertake to say that Congress has the unlimited power to legislate against unisances within a State, which it would have within a Territory, we do not think the admission of a Territory as a State deprives if of the power of legislating for the protection of the public lands, though it may thereby involve the exercise of what is ordinarily known as the police power, so long as such power is directed solely to its own protection." Appellees mistakenly read this language to limit Congress' power to regulate activity on the public lands; in fact, the quoted passage refers to the scope of congressional power to regulate conduct on private land that affects the public lands. And Camfield holds that the Property Clause is broad enough to permit federal regulation of fences built on private land adjoining public land when the regulation is for the protection of the federal property. Camfield contains no suggestion of any limitation on Congress' power over conduct on its own property; its sole message is that the power granted by the Property Clause is broad enough to reach beyond territorial limits.

In brief, appellees have presented no support for their position that the Clause grants Congress only the power to dispose of, to make incidental rules regarding the use of, and to protectfederal property. This failure is hardly surprising, for the Clause, in broad terms, gives Congress the power to determine what are "needful" rules "respecting" the public lands. And while the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that "[t]he power over the public lands thus entrusted to Congress is without limitations."

The decided cases have supported this expansive reading. It is the Property Clause, for instance, that provides the basis for governing the territories of the United States. And even over public land within the States, "[t]he general Government doubtless has a power over its own property analogous to the police power of the several States, and the extent to which it may go in the exercise of such power is measured by the exigencies of the particular case." We have noted, for example, that the Property Clause gives Congress the power over the public lands "to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them . . . ."  And we have approved legislation respecting the public lands "[i]f it be found necessary for the protection of the public, or of intending settlers [on the public lands]."  In short, Congress exercises the powers both of a proprietor and of a legislature over the public domain.  Although the Property Clause does not authorize "an exercise of a general control over public policy in a State," it does permit "an exercise of the complete power which Congress has over particular public property entrusted to it." In our view the "complete power" that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there.


Appellees argue that if we approve the Wild Free-Roaming Horses and Burros Act as a valid exercise of Congress' power under the Property Clause, then we have sanctioned an impermissible intrusion on the sovereignty, legislative authority and police power of the State and have wrongly infringed upon the State's traditional trustee powers over wild animals. The argument appears to be that Congress could obtain exclusive legislative jurisdiction over the public lands in the State only by state consent, and that in the absence of such consent Congress lacks the power to act contrary to state law This argument is without merit....

Appellees' claim confuses Congress' derivative legislative powers, which are not involved in this case, with its powers under the Property Clause. Congress may acquire derivative legislative power from a state pursuant to Art. I, § 8, cl. 17, of the Constitution by consensual acquisition of land, or by nonconsensual acquisition followed by the State's subsequent cession of legislative authority over the land. Fort Leavenworth R. Co. v. Lowe (1885). 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.

But while Congress can acquire exclusive or partial jurisdiction over lands within a State by the State's consent or cession, the presence or absence of such jurisdiction has nothing to do with Congress' powers under the Property Clause. 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. "A different rule would place the public domain of the United States completely at the mercy of state legislation...."

Thus, appellees' assertion that "[a]bsent state consent by complete cession of jurisdiction of lands to the United States, exclusive jurisdiction does not accrue to the federal landowner with regard to federal lands within the borders of the state,"  is completely beside the point; and appellees' fear that the Secretary's position is that "the Property Clause totally exempts federal lands within state borders from state legislative powers, state police powers, and all rights and powers of local sovereignty and jurisdiction of the state," is totally unfounded. The Federal Government does not assert exclusive jurisdiction over the public lands in New Mexico, and the State is free to enforce its criminal and civil laws on those lands. But where those state laws conflict with the Wild Free-Roaming Horses and Burros Act, or with other legislation passed pursuant to the Property Clause, the law is clear: the state laws must recede....

Appellees' contention that the Act violates traditional state power over wild animals stands on no different footing. Unquestionably the States have broad trustee and police powers over wild animals within their jurisdictions. But as Geer v. Connecticut cautions, those powers exist only "in so far as their exercise may not be incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution."  "No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of [wildlife], but it does not follow that its authority is exclusive of paramount powers." Missouri v. Holland, 252 U.S. 416, 434 (1920). Thus, the Privileges and Immunities Clause, U.S. Const., Art. IV, § 2, cl. 1, precludes a State from imposing prohibitory licensing fees on non-residents shrimping in its waters, Toomer v. Witsell, supra; the Treaty Clause, U.S. Const., Art. II, § 2, permits Congress to enter into and enforce a treaty to protect migratory birds despite state objections, Missouri v. Holland, supra; and the Property Clause gives Congress the power to thin overpopulated herds of deer on federal lands contrary to state law. Hunt v. United States, supra. We hold today that the Property Clause also gives Congress the power to protect wildlife on the public lands, state law notwithstanding.


In this case, the New Mexico Livestock Board entered upon the public lands of the United States and removed wild burros. These actions were contrary to the provisions of the Wild Free-Roaming Horses and Burros Act. We find that, as applied to this case, the Act is a constitutional exercise of congressional power under the Property Clause. We need not, and do not, decide whether the Property Clause would sustain the Act in all of its conceivable applications.

Appellees are concerned that the Act's extension of protection to wild free-roaming horses and burros that stray from public land onto private land, § 4 of the Act, 16 U.S.C. § 1334, will be read to provide federal jurisdiction over every wild horse or burro that at any time sets foot upon federal land. While it is clear that regulations under the Property Clause may have some effect on private lands not otherwise under federal control,  we do not think it appropriate in this declaratory judgment proceeding to determine the extent, if any, to which the Property Clause empowers Congress to protect animals on private lands or the extent to which such regulation is attempted by the Act....

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