Kentucky Advisory Opinions May 22, 2008: OAG 08-003 (May 22, 2008)

OAG 08-003.

Syllabus: Since the United States has exclusive territorial jurisdiction in the Mammoth Cave National Park enclave, such territory is not subject to state regulation or jurisdiction concerning alcoholic beverages.

Statute construed: KRS 3.070

OAG's cited: OAG 77-581; OAG 78-267

Opinion of the Attorney General

Senator Richie Sanders, Jr., has requested an opinion addressing the following question: "Is the land in the federal enclave known as Mammoth Cave National Park subject to state jurisdiction and regulation regarding the consumption and sale of alcoholic beverages, or is the park outside of the enforcement of KRS Chapters 241-244 by state authorities or others?" Pursuant to the usual practice of this Office, written comments have been obtained from the Environmental and Public Protection Cabinet, Office of Alcoholic Beverage Control. In agreement with those comments, we believe the federal enclave is not subject to state jurisdiction or regulation.

The land constituting the Mammoth Cave National Park premises (located in Edmonson, Barren, and Hart counties) was authorized to be acquired by the United States in a 1930 act of the General Assembly now codified at KRS 3.070. Subsection (2) of that statute provides:

The jurisdiction of Kentucky is ceded to the United States over, within and under all the territory so acquired by the United States. Kentucky reserves the right to tax sales of gasoline and other motor conveyance fuels and oils for use in motor conveyances, except to the extent that such gasoline and other fuels and oils are used by the United States and its agents in the administration, protection, improvement, maintenance, development and operation of the land, and the right to tax persons, their franchises and properties, on the land so acquired. Persons residing on the land shall have the right to vote at all elections within the respective counties of their residence the same as if the land had not been acquired by the United States. Jurisdiction shall not vest in the United States until the United States, through the Secretary of the Interior, notifies the Governor of Kentucky that the United States assumes police jurisdiction over the land so acquired.

In 1942, Congress enacted 16 U.S.C. 404c-1, in which the United States accepted Kentucky's cession of jurisdiction. The federal act provides: " Subject to the reservations made by the Commonwealth in the act of cession, the United States assumes sole and exclusive jurisdiction over such territory." (Emphasis added.) In accordance with Kentucky's statute, 16 U.S.C. 404c-10 states: "The Secretary of the Interior shall notify in writing the Governor of the Commonwealth of Kentucky of the passage and approval of this Act, and of the fact that the United States assumes police jurisdiction over the park." From that time forward, therefore, jurisdiction was assumed by the United States.

As the former Kentucky Court of Appeals has noted, "the jurisdiction of the federal government over ceded land is territorial jurisdiction and embraces all activities, rights and transactions within the external boundaries of the land." Kingwood Oil Co. v. Henderson County Bd. of Supervisors, 267 S.W.2d 129, 132 (Ky. 1963) (emphasis in original). This Office has previously stated that "[i]n the absence of reservations in the consenting act, federal jurisdiction over land acquired by the United States by consent of the state is exclusive of state authority." OAG 77-581. We accordingly opined that a county coroner had no jurisdiction to conduct an inquest or order an autopsy on civilians who lived and died within the Fort Campbell federal enclave. Similarly, in OAG 78-267, we stated that the Commonwealth had no jurisdiction to enforce Kentucky's occupational safety and health standards in an exclusive federal enclave, where such jurisdiction had neither been reserved in the cession of territory nor been "retroceded" to the Commonwealth by subsequent act of Congress.

The only reservations of jurisdiction in KRS 3.070 pertain to taxation and voting rights, nor are we aware of subsequent federal laws "retroceding" any jurisdiction to the Commonwealth. Therefore, it is the opinion of this Office that Mammoth Cave National Park is not subject to state jurisdiction and regulation regarding the consumption and sale of alcoholic beverages.

Jack Conway

Attorney General

James M. Herrick

Assistant Attorney General