The Endangered Species Act has never been enacted into positive law, which applies within the states and to all Citizens. Title 1 USC, Section 204 (notes) states Title 16 has never been enacted into ‘positive’ law. 28 USC Section 1603 defines “United States” as it only applies where the United States has been ceded jurisdiction by the sovereign states, of which New Mexico is a sovereign state. New Mexico has not ceded state sovereignty to the United States.
The Endangered Species Act has not been made into positive law. The ESA only applies with in the United States as defined by 28 USC Section 1603. Unless the ESA or defined expansion of federal authority and jurisdiction are enumerated by Artile 1 Section 8, the ESA does not apply to the sovereigns of New Mexico. Below are the USC, CFR, and Congressional acts that define the United States, the jurisdiction of the United States and the mission and authority of the U.S. Forest Service. Thanks for Dan Martinez guiding my research.
§ 204. Codes and Supplements as evidence of the laws of United States and District of Columbia; citation of Codes and Supplements
In all courts, tribunals, and public offices of the United States, at home or abroad, of the District of Columbia, and of each State, Territory, or insular possession of the United States—
(a) United States Code.— The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.
(b) District of Columbia Code.— The matter set forth in the edition of the Code of the District of Columbia current at any time shall, together with the then current supplement, if any, establish prima facie the laws, general and permanent in their nature, relating to or in force in the District of Columbia on the day preceding the commencement of the session following the last session the legislation of which is included, except such laws as are of application in the District of Columbia by reason of being laws of the United States general and permanent in their nature.
(c) District of Columbia Code; citation.— The Code of the District of Columbia may be cited as “D.C. Code”.
(d) Supplements to Codes; citation.— Supplements to the Code of Laws of the United States and to the Code of the District of Columbia may be cited, respectively, as “U.S.C., Sup. ”, and “D.C. Code, Sup. ”, the blank in each case being filled with Roman figures denoting the number of the supplement.
(e) New edition of Codes; citation.— New editions of each of such codes may be cited, respectively, as “U.S.C., ed.”, ed.”, the blank in each case being filled with figures and “D.C. Code, denoting the last year the legislation of which is included in whole or in part.
TITLE 28 > PART IV > CHAPTER 97 > § 1603
§ 1603. Definitions
For purposes of this chapter—
(a) A “foreign state”, except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).
(b) An “agency or instrumentality of a foreign state” means any entity—
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332 (c) and (e) of this title, nor created under the laws of any third country.
(c) The “United States” includes all territory and waters, continental or insular, subject to the jurisdiction of the United States.
(d) A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.
(e) A “commercial activity carried on in the United States by a foreign state” means commercial activity carried on by such state and having substantial contact with the United States.
Section 8: Powers of Congress
[edit] Enumerated powers
Main article: Enumerated powers
Congress’s powers are enumerated in Section Eight:
Section 8: The Congress shall have power
To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;—And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
TITLE 40 > SUBTITLE II > PART A > CHAPTER 31 > SUBCHAPTER II > § 3111
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§ 3111. Approval of sufficiency of title prior to acquisition
(a) Approval of Attorney General Required.— Public money may not be expended to purchase land or any interest in land unless the Attorney General gives prior written approval of the sufficiency of the title to the land for the purpose for which the Federal Government is acquiring the property.
(b) Delegation.—
(1) In general.— The Attorney General may delegate the responsibility under this section to other departments and agencies of the Government, subject to general supervision by the Attorney General and in accordance with regulations the Attorney General prescribes.
(2) Request for opinion of attorney general.— A department or agency of the Government that has been delegated the responsibility to approve land titles under this section may request the Attorney General to render an opinion as to the validity of the title to any real property or interest in the property, or may request the advice or assistance of the Attorney General in connection with determinations as to the sufficiency of titles.
(c) Payment of Expenses for Procuring Certificates of Title.— Except where otherwise authorized by law or provided by contract, the expenses of procuring certificates of titles or other evidences of title as the Attorney General may require may be paid out of the appropriations for the acquisition of land or out of the appropriations made for the contingencies of the acquiring department or agency of the Government.
(d) Nonapplication.— This section does not affect any provision of law in effect on September 1, 1970, that is applicable to the acquisition of land or interests in land by the Tennessee Valley Authority.
TITLE 40 > SUBTITLE II > PART A > CHAPTER 31 > SUBCHAPTER II > § 3112
§ 3112. Federal jurisdiction
(a) Exclusive Jurisdiction Not Required.— It is not required that the Federal Government obtain exclusive jurisdiction in the United States over land or an interest in land it acquires.
(b) Acquisition and Acceptance of Jurisdiction.— When the head of a department, agency, or independent establishment of the Government, or other authorized officer of the department, agency, or independent establishment, considers it desirable, that individual may accept or secure, from the State in which land or an interest in land that is under the immediate jurisdiction, custody, or control of the individual is situated, consent to, or cession of, any jurisdiction over the land or interest not previously obtained. The individual shall indicate acceptance of jurisdiction on behalf of the Government by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated.
(c) Presumption.— It is conclusively presumed that jurisdiction has not been accepted until the Government accepts jurisdiction over land as provided in this section.
Title 16: Commercial Practices
PART 0—ORGANIZATION
§ 0.5 Laws authorizing monetary claims.
The Commission is authorized to entertain monetary claims against it under three statutes. The Federal Tort Claims Act (28 U.S.C. 2671–2680) provides that the United States will be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful acts or omissions of its employees acting within the scope of their employment or office. The Military Personnel and Civilian Employees Claims Act of 1964 (31 U.S.C. 3701, 3721) authorizes the Commission to compensate employees’ claims for damage to or loss of personal property incident to their service. The Equal Access to Justice Act (5 U.S.C. 504 and 28 U.S.C. 2412) provides that an eligible prevailing party other than the United States will be awarded fees and expenses incurred in connection with any adversary adjudicative and court proceeding, unless the adjudicative officer finds that the agency was substantially justified or that special circumstances make an award unjust. In addition, eligible parties, including certain small businesses, will be awarded fees and expenses incurred in defending against an agency demand that is substantially in excess of the final decision of the adjudicative officer and is unreasonable when compared with such decision under the facts and circumstances of the case, unless the adjudicative officer finds that the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. Questions may be addressed to the Office of the General Counsel, (202) 326–2462.
Title 36 CODE FEDERAL REGULATIONS
Subpart B—Functions and
Procedures
§ 200.3 Forest Service functions.
(a) Legislative authority. The basic
laws authorizing activities of the Forest
Service are set forth in the U.S.C.
in title 7 (Agriculture), chapters 14, 17,
33, 55, 59, and 61; title 16 (Conservation),
chapters 2, 3, 4, 5C, 6, 23, 27, 28, 30, 36,
and 37; title 29 (Labor), chapter 17; and
title 43 (Public Lands), chapters 22 and
35.
(b) Work of the Forest Service. Under
delegated authority from the Secretary
of Agriculture, the broad responsibilities
of the Forest Service are:
(1) Leadership in forestry. The Forest Service provides overall leadership in forest and forest-range conservation,
development, and use. This involves determination
of forestry conditions and
requirements, and recommendations of
policies and programs needed to keep
the Nation’s private and public lands
fully productive.
(2) National Forest System administration.
(i) The Forest Service administers
and manages the National Forest System
lands in accordance with the Multiple-
Use Sustained-Yield Act of June
12, 1960 (16 U.S.C. 528–531); the Forest
and Rangeland Renewable Resources
Planning Act of August 17, 1974 (16
U.S.C. 1600–1614); and the National Forest
Management Act of October 22, 1976
(16 U.S.C. 472a, 476, 500, 513–516, 521b;
576b, 1600–1602, 1604, 1606, 1608–1614).
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§ 200.4 36 CFR Ch. II (7–1–07 Edition)
(ii) The National Forest System comprises
about 188 million acres of land in
the National Forests, National Grasslands,
and other areas which have been
transferred to the Forest Service for
administration. On these public lands:
(A) Forestry methods are applied in
growing and harvesting timber,
(B) Forage is scientifically managed
for the use of domestic livestock whose
numbers are kept in balance with the
carrying capacity of the range,
(C) Wildlife habitat and species are
managed,
(D) Watersheds are managed to safeguard the water supply and stabilize streamflow,
(E) Recreation resources are managed
for public enjoyment and benefit,
(F) Many forms of land and resource use are granted under permit or lease, and
(G) Physical and resource improvements needed to develop, protect, and use all resources are built and maintained.
(3) Cooperative forestry. The Forest
Service carries out cooperative forestry
programs for public benefit
through programs initiated by State,
county, and other Federal agencies in
accordance with the Cooperative Forestry
Assistance Act of July 1, 1978 (16
U.S.C. 2101–2111). These programs are
directed at the protection, development,
and sustained production of all
forestry resources, both public and private.
(4) Forest research. The Forest Service
conducts research on problems involving
protection, development, management,
renewal, and continuous use of
all resources, products, values, and
services of forest lands in accordance
with the Forest and Rangeland Renewable
Resources Research Act of June
30, 1978 (16 U.S.C. 1641–1647). Research is
conducted on:
(i) Forest and range management, including
the five basic resources of timber,
forest soil and water, range forage,
wildlife and fish habitat, and forest
recreation,
(ii) Forest protection from fire, insects,
and disease,
(iii) Forest products and engineering,
and
(iv) Forest resource economics including forest survey, forest economics, and forest products marketing.
[44 FR 37505, June 27, 1979]
§ 200.4 Administrative issuances.
(a) The regulations of the Secretary
of Agriculture governing the protection
and administration of National
Forest System lands and other programs
of the Forest Service are set
forth in Chapter 2 of Title 36 of the
Code of Federal Regulations.
(b) Administrative policy, procedure,
and guidance to Forest Service employees
for the conduct of Forest Service
activities are issued as directives,
or through correspondence, by the office
of the Chief of the Forest Service
and by the field officers listed in § 200.2.
(1) Directives are issued through the
Forest Service Directive System,
which is comprised of the Forest Service
Manual and related Forest Service
Handbooks. The Directive System codifies
the agency’s policy, practice, and
procedure affecting more than one unit
and the delegations of continuing authority
and assignment of continuing
responsibilities; serves as the primary
administrative basis for the internal
management and control of all programs;
and is the primary source of administrative
direction to Forest Service
employees.
(2) In contrast to direction issued
through the Directive System, guidance
issued to one or more organizational
units through letters and memoranda
relate to decisions or interpretations
on specific activities, cases, or incidents
or to other matters of agency
business, especially those matters of
short-term duration or immediate interest.
(c) Forest Service Directive System issuances are published under delegated authority as follows:
(1) The Forest Service Manual and Forest Service Handbook issuances to all Forest Service units are published
(2) Forest Service Manual and Forest
Service Handbook issuances may be
supplemented as needed for field office
use by a Regional Forester, a Regional
VerDate Aug
TITLE 16 > CHAPTER 36 > SUBCHAPTER I > § 1604
§ 1604. National Forest System land and resource management plans
(a) Development, maintenance, and revision by Secretary of Agriculture as part of program; coordination
As a part of the Program provided for by section 1602 of this title, the Secretary of Agriculture shall develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies.
(b) Criteria
In the development and maintenance of land management plans for use on units of the National Forest System, the Secretary shall use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences.
(c) Incorporation of standards and guidelines by Secretary; time of completion; progress reports; existing management plans
The Secretary shall begin to incorporate the standards and guidelines required by this section in plans for units of the National Forest System as soon as practicable after October 22, 1976, and shall attempt to complete such incorporation for all such units by no later than September 30, 1985. The Secretary shall report to the Congress on the progress of such incorporation in the annual report required by section 1606 (c) of this title. Until such time as a unit of the National Forest System is managed under plans developed in accordance with this subchapter, the management of such unit may continue under existing land and resource management plans.
(d) Public participation in management plans; availability of plans; public meetings
The Secretary shall provide for public participation in the development, review, and revision of land management plans including, but not limited to, making the plans or revisions available to the public at convenient locations in the vicinity of the affected unit for a period of at least three months before final adoption, during which period the Secretary shall publicize and hold public meetings or comparable processes at locations that foster public participation in the review of such plans or revisions.
(e) Required assurances
In developing, maintaining, and revising plans for units of the National Forest System pursuant to this section, the Secretary shall assure that such plans—
(1) provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960 [16 U.S.C. 528–531], and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness; and
(2) determine forest management systems, harvesting levels, and procedures in the light of all of the uses set forth in subsection (c)(1) of this section, the definition of the terms “multiple use” and “sustained yield” as provided in the Multiple-Use Sustained-Yield Act of 1960, and the availability of lands and their suitability for resource management.
Plans developed in accordance with this section shall—
(1) form one integrated plan for each unit of the National Forest System, incorporating in one document or one set of documents, available to the public at convenient locations, all of the features required by this section;
(2) be embodied in appropriate written material, including maps and other descriptive documents, reflecting proposed and possible actions, including the planned timber sale program and the proportion of probable methods of timber harvest within the unit necessary to fulfill the plan;
(3) be prepared by an interdisciplinary team. Each team shall prepare its plan based on inventories of the applicable resources of the forest;
(4) be amended in any manner whatsoever after final adoption after public notice, and, if such amendment would result in a significant change in such plan, in accordance with the provisions of subsections (e) and (f) of this section and public involvement comparable to that required by subsection (d) of this section; and
(A) from time to time when the Secretary finds conditions in a unit have significantly changed, but at least every fifteen years, and
(B) in accordance with the provisions of subsections (e) and (f) of this section and public involvement comparable to that required by subsection (d) of this section.
(g) Promulgation of regulations for development and revision of plans; environmental considerations; resource management guidelines; guidelines for land management plans
As soon as practicable, but not later than two years after October 22, 1976, the Secretary shall in accordance with the procedures set forth in section 553 of title 5, promulgate regulations, under the principles of the Multiple-Use Sustained-Yield Act of 1960 [16 U.S.C. 528–531] that set out the process for the development and revision of the land management plans, and the guidelines and standards prescribed by this subsection. The regulations shall include, but not be limited to—
(1) specifying procedures to insure that land management plans are prepared in accordance with the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.], including, but not limited to, direction on when and for what plans an environmental impact statement required under section 102(2)(C) of that Act [42 U.S.C. 4332 (2)(C)] shall be prepared;
(2) specifying guidelines which—
(A) require the identification of the suitability of lands for resource management;
(B) provide for obtaining inventory data on the various renewable resources, and soil and water, including pertinent maps, graphic material, and explanatory aids; and
(C) provide for methods to identify special conditions or situations involving hazards to the various resources and their relationship to alternative activities;
(3) specifying guidelines for land management plans developed to achieve the goals of the Program which—
(A) insure consideration of the economic and environmental aspects of various systems of renewable resource management, including the related systems of silviculture and protection of forest resources, to provide for outdoor recreation (including wilderness), range, timber, watershed, wildlife, and fish;
(B) provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan;
(C) insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land;
(D) permit increases in harvest levels based on intensified management practices, such as reforestation, thinning, and tree improvement if
(i) such practices justify increasing the harvests in accordance with the Multiple-Use Sustained-Yield Act of 1960, and
(ii) such harvest levels are decreased at the end of each planning period if such practices cannot be successfully implemented or funds are not received to permit such practices to continue substantially as planned;
(E) insure that timber will be harvested from National Forest System lands only where—
(i) soil, slope, or other watershed conditions will not be irreversibly damaged;
(ii) there is assurance that such lands can be adequately restocked within five years after harvest;
(iii) protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat; and
(iv) the harvesting system to be used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber; and
(F) insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an evenaged stand of timber will be used as a cutting method on National Forest System lands only where—
(i) for clearcutting, it is determined to be the optimum method, and for other such cuts it is determined to be appropriate, to meet the objectives and requirements of the relevant land management plan;
(ii) the interdisciplinary review as determined by the Secretary has been completed and the potential environmental, biological, esthetic, engineering, and economic impacts on each advertised sale area have been assessed, as well as the consistency of the sale with the multiple use of the general area;
(iii) cut blocks, patches, or strips are shaped and blended to the extent practicable with the natural terrain;
(iv) there are established according to geographic areas, forest types, or other suitable classifications the maximum size limits for areas to be cut in one harvest operation, including provision to exceed the established limits after appropriate public notice and review by the responsible Forest Service officer one level above the Forest Service officer who normally would approve the harvest proposal: Provided, That such limits shall not apply to the size of areas harvested as a result of natural catastrophic conditions such as fire, insect and disease attack, or windstorm; and
(v) such cuts are carried out in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and esthetic resources, and the regeneration of the timber resource.
(h) Scientific committee to aid in promulgation of regulations; termination; revision committees; clerical and technical assistance; compensation of committee members
(1) In carrying out the purposes of subsection (g) of this section, the Secretary of Agriculture shall appoint a committee of scientists who are not officers or employees of the Forest Service. The committee shall provide scientific and technical advice and counsel on proposed guidelines and procedures to assure that an effective interdisciplinary approach is proposed and adopted. The committee shall terminate upon promulgation of the regulations, but the Secretary may, from time to time, appoint similar committees when considering revisions of the regulations. The views of the committees shall be included in the public information supplied when the regulations are proposed for adoption.
(2) Clerical and technical assistance, as may be necessary to discharge the duties of the committee, shall be provided from the personnel of the Department of Agriculture.
(3) While attending meetings of the committee, the members shall be entitled to receive compensation at a rate of $100 per diem, including traveltime, and while away from their homes or regular places of business they may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by section 5703 of title 5, for persons in the Government service employed intermittently.
(i) Consistency of resource plans, permits, contracts, and other instruments with land management plans; revision
Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans. Those resource plans and permits, contracts, and other such instruments currently in existence shall be revised as soon as practicable to be made consistent with such plans. When land management plans are revised, resource plans and permits, contracts, and other instruments, when necessary, shall be revised as soon as practicable. Any revision in present or future permits, contracts, and other instruments made pursuant to this section shall be subject to valid existing rights.
(j) Effective date of land management plans and revisions
Land management plans and revisions shall become effective thirty days after completion of public participation and publication of notification by the Secretary as required under subsection (d) of this section.
(k) Development of land management plans
In developing land management plans pursuant to this subchapter, the Secretary shall identify lands within the management area which are not suited for timber production, considering physical, economic, and other pertinent factors to the extent feasible, as determined by the Secretary, and shall assure that, except for salvage sales or sales necessitated to protect other multiple-use values, no timber harvesting shall occur on such lands for a period of 10 years. Lands once identified as unsuitable for timber production shall continue to be treated for reforestation purposes, particularly with regard to the protection of other multiple-use values. The Secretary shall review his decision to classify these lands as not suited for timber production at least every 10 years and shall return these lands to timber production whenever he determines that conditions have changed so that they have become suitable for timber production.
(l) Program evaluation; process for estimating long-term costs and benefits; summary of data included in annual report
The Secretary shall—
(1) formulate and implement, as soon as practicable, a process for estimating long-terms [1] costs and benefits to support the program evaluation requirements of this subchapter. This process shall include requirements to provide information on a representative sample basis of estimated expenditures associated with the reforestation, timber stand improvement, and sale of timber from the National Forest System, and shall provide a comparison of these expenditures to the return to the Government resulting from the sale of timber; and
(2) include a summary of data and findings resulting from these estimates as a part of the annual report required pursuant to section 1606 (c) of this title, including an identification on a representative sample basis of those advertised timber sales made below the estimated expenditures for such timber as determined by the above cost process; and [2]
(m) Establishment of standards to ensure culmination of mean annual increment of growth; silvicultural practices; salvage harvesting; exceptions
The Secretary shall establish—
(1) standards to insure that, prior to harvest, stands of trees throughout the National Forest System shall generally have reached the culmination of mean annual increment of growth (calculated on the basis of cubic measurement or other methods of calculation at the discretion of the Secretary): Provided, That these standards shall not preclude the use of sound silvicultural practices, such as thinning or other stand improvement measures: Provided further, That these standards shall not preclude the Secretary from salvage or sanitation harvesting of timber stands which are substantially damaged by fire, windthrow or other catastrophe, or which are in imminent danger from insect or disease attack; and
(2) exceptions to these standards for the harvest of particular species of trees in management units after consideration has been given to the multiple uses of the forest including, but not limited to, recreation, wildlife habitat, and range and after completion of public participation processes utilizing the procedures of subsection (d) of this section.
Filed under: Endangered Species Act, FOREST SEVICE, Lincoln National Forest | Tagged: Add new tag, TITLE 16, TITLE 28, US CODE OF FEDERAL REGULATIONS
