Under Whose Authority?

In a county where more than half of the land is public, determining where the county sheriff authority has jurisdiction can be difficult.

A discussion at the most recent meeting of the Board of Carbon County Commissioners (BOCCC) over which agency has the ultimate jurisdiction within Carbon County used terminology from the constitutional sheriffs and country supremacy movements.

Somewhat Political

The discussion, which lasted just under 30 minutes, was prompted by Saratoga resident Scott Kerbs at the August 26 meeting of the BOCCC.

“The reason for my appearance is somewhat political, I guess you could say, but it’s the interaction between the federal government and states and counties,” said Kerbs. “The livelihood of our county and economic strength depends on a lot of decisions the feds make.”

WIthin the nearly 8,000 square miles of Carbon County, just over half of the land is public at 53%. The majority of that—around 40%—is managed by the Bureau of Land Management (BLM) and another 12% is managed by the United States Forest Service (USFS).

Kerbs cited recent actions by both federal organizations as the catalyst for his appearance. Specifically the Rock Springs Resource Management Plan released by the BLM, the indictment of a South Dakota couple regarding the Buffalo Gap National Grassland and a new public lands rules released by BLM earlier this year which now includes conservation as a use along with recreation, livestock grazing and energy development.

“I think it’s time that counties across the West, where the county sheriff in the whole country is the ultimate authority in each county, rescind the law enforcement by BLM and Forest Service on lands within the boundary of the county,” said Kerbs. “It’s the only way we’re ever going to get their attention to say ‘If you’re going to push, we’re going to push back.’”

Constitutional Sheriffs

Kerbs’ comment that the county sheriff is the ultimate authority mirrors language used by the Constitutional Sheriffs and Peace Officers Association (CSPOA), a group founded in 2009 by Richard Mack, a former sheriff of Graham County, Arizona. According to the Southern Poverty Law Center, “the origins of the constitutional sheriff ideology lie in the two concepts of the county supremacy movement: the county—not the state or federal governments—should control all land within its borders, and the county sheriff should be the ultimate law enforcement authority in the U.S.”

In a 2023 interview with Westlaw Today, political science professors Emily Farris and Mirya Holman, the two explained that a constitutional sheriff “believes that the sheriff’s constitutional authority means that they can choose which state and federal laws to enforce.”

“A cornerstone of the CSPOA’s message is that sheriffs have the right and responsibility to interopose, or place themselves between a higher government authority and their constituents,” said Farris and Holman in the interview. “In Cooper v. Aaron … the U.S. Supreme Court rejected the idea of interposition, or that states and lower governments are able to oppose or refuse actions by the federal government that they deem unconstitutional.”

This, according to an August 2023 article from the Associated Press, includes gun control laws, COVID-19 mask mandates and public health regulations.

The concept of the constitutional sheriff, according to the Southern Poverty Law Center, stems from the American county supremacy movement. Two concepts of this movement include the belief that county government should have control of all the land in its borders and that the county sheriff has ultimate law enforcement authority in the United States. This concept was pushed in the 1970s by Willaim Potter Gale, a Christian Identity minister who promoted the idea of “Posse Comitatus” or “the power of the county.”

The idea of sheriff supremacy, however, is based on a “faulty reading of history” according to a September 2017 article in Politico Magazine written by Robert Tsai, a professor of law at American University.

“Where states’ rights has some support in the text and history of the Constitution … the idea of sheriff supremacy does not: It has been made up by stitching together random references to sheriffs and militias in our political and legal texts,” wrote Tsai. “It relies on a highly selective reading of history, pretending that the high sheriff of the English shire was transplanted to colonial America, and then somehow emerged in the present day untouched by legal developments over the past 200 years.”

Whose Jurisdiction?

As the discussion continued, Commissioner John Johnson asked Sheriff Alex Bakken which agency had the ultimate jurisdiction in Carbon County.

“My understanding is the same as Scott’s, that the ultimate authority in Carbon County is you. You can override everything except I’m sure there’s some national security things,” said Johnson. “Who has jurisdiction over you and do you have jurisdiction on the federal grounds and state grounds in Carbon County?”

Bakken said it would depend on who was asked.

“The constitution doesn’t specifically mention ‘sheriff’ in it, when you talk about the federal constitution,” said Bakken. “Under the State of Wyoming, the county sheriff is considered the chief law enforcement officer of the county which—in and of itself—would determine that we have what’s called overriding jurisdiction over state and local law enforcement.”

Bakken estimated that, among county sheriffs in the United States, opinions would likely be split 50/50 as to whether a sheriff can override the authority of a state or federal agency.

“I believe we’re all constitutional sheriffs because we take an oath to defend the constitution,” said Bakken. “If there’s ever an issue that arises where our conditional rights are being threatened or violated by the federal government, then that’s where I would step in as that chief law enforcement officer and do whatever we determined would be right. Unfortunately, there’s really no clear cut decision.”

Ashley Mayfield-Davis, deputy civil attorney for the Carbon County Attorney’s Office, provided a little more clarity on jurisdiction using the Wyoming State Prison and the Department of Corrections as an example.

“The sheriff’s office gets called to do investigations at the prison all the time. Technically, the state has investigators for DOC (Department of Corrections) but they can’t charge crimes so they call the sheriff’s office in. Now, there’s permission for the sheriff’s office to walk in the doors in that kind of scenario,” said Mayfield-Davis. “I think the sheriff’s office, and even highway patrol, would have the authority to go into the forest service and investigate crimes. We’ve never reached an issue where we’ve been told to get off and stop investigation by the forest service or BLM.”

Power of Enforcement

Jason Armbruster, Brush Creek/Hayden District Ranger, shed some light on how the law enforcement arm of the USFS works for the Medicine Bow National Forest and Thunder Basin National Grasslands.

“The law enforcement organization for the forest service is a parallel organization. They don’t report to me as the district ranger or to the forest supervisor in Laramie. We do work together and interact,” said Armbruster. “Our law enforcement officers focus on enforcing the code of federal regulations that are promulgated specifically for forest service ground. Mostly related to natural resource protection-related issues. We do have a cooperative law enforcement agreement with Carbon County.”

Commissioner John Espy—who serves on the National Association of Counties—said the issue of jurisdiction was an issue throughout the West with opinions varying depending on the amount of public land to private land.

“In the 16 western public land states, this is quite an issue. The counties that are 50% private or over do not want BLM law enforcement. Take Coconino County—Flagstaff, Arizona—they are 10% private and 90% public,” said Espy. “They want more federal law enforcement because all the crimes are occuring on federal lands. It ebbs and flows. The small counties is where the conflict usually arises. Most of the issues [are] occurring in places where the BLM rangers have accepted state jurisdiction, county jurisdiction, where those MOUs have been signed. If you dig down, 90% of the issues occur from there.”

Bakken said what Espy described sounded similar to concurrent jurisdiction, which grants federal authorities the same powers as local law enforcement.

“They can arrest, detain and investigate just about any crime. If there’s not a specific crime in the CFR (Code of Federal Regulations) that matches it, they can use what’s called the assimilated crimes act which can mirror a state statute to fit whatever they’re investigating,” said Bakken. “We don’t have that issue in Carbon County.”

Cooler Heads

According to Bakken, he had reached out to the patrol commander for the Brush Creek/Hayden district following news of the incident in South Dakota but was told she knew little about the situation.

As was reported by Tri-State Livestock News, Charles and Heather Maude were separately indicted in June 2024 for theft of federal property and could each face up to 10 years in prison and a fine of $250,000. The issue, according to Tri-State Livestock News, is a property boundary between the USFS and the Maudes despite the family having a grazing allotment since 1910.

“As far as the Buffalo Gap situation goes, from everything I could read about it that I could find, it seemed pretty sensationalized and it was really only one side [of the story] I could get. It sounds like the forest service is being relatively quiet about it which, when any sort of investigation is ongoing, that’s pretty completely normal and within the realm of their operations,” said Bakken. “I think there’s probably more to the situation that we’re missing that, understandably, isn’t reported on if it’s part of an active investigation. I’m hoping to get some more information from the forest service.”

Kerbs said he had concerns over a similar situation happening in Carbon County, citing a new survey of the Sierra Madre mountains which he said showed the USFS encroaching into private property. Mayfield-Davis said if there were any alleged violation of federal law in Carbon County, it would go through the magistrate courts in either Casper or Cheyenne or the district court in Cheyenne.

“They found to go through the federal law enforcement rather than the county law enforcement as in their favor?” asked Kerbs.

“I don’t think it has anything to do with that. I can’t enforce a federal law because I’m not a federal attorney,” said Mayfield-Davis. “It has to be with the federal attorney’s office and that’s who gets to enforce federal laws. As state prosecutors, we get to enforce the State of Wyoming violations.”

As the discussion came to a close, Chairwoman Sue Jones said she hoped “cooler heads would prevail and we remember that we’re neighbors and we know each other.”

The Board of Carbon County Commissioners will have met on September 3 at the Carbon Building-Courthouse Annex in Rawlins.

The next meeting of the Board of Carbon County Commissioners is at 2 p.m. on September 17 at the Baggs Higher Education Center in Baggs.