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United States of America v. Pheasant

NCLA urges the U.S. Ninth Circuit Court of Appeals to affirm a decision barring the Bureau of Land Management (BLM) from wielding legislative power to criminalize activity on public lands. Gregory Pheasant was charged with three violations of BLM rules for allegedly failing to use a taillight on his dirt bike at night on federal land in Nevada. A federal district court dismissed the charges, ruling that Congress unconstitutionally delegated “virtually unfettered” legislative power to criminalize activities on Bureau-managed lands.

Congress purportedly gave the BLM complete authority to criminalize activity on Bureau-managed public land through a provision in the Federal Land Policy and Management Act of 1976. That provision violates the Vesting Clause of the Constitution, which reserves all legislative authority for Congress and forbids it from divesting that power to an administrative agency or anyone else. Determining what actions are criminal is an exclusively legislative task. The text and structure of the Constitution support the view that Congress, not agencies, have the power to define crimes.

In transferring legislative power to the BLM, Congress weakens its accountability to the public and deprives Americans of their freedom to rule themselves through elected representatives, instead allowing unelected bureaucrats to unilaterally brand them criminals. Congress cannot be allowed to fend off political consequences by shifting its criminal lawmaking responsibility elsewhere.

Kara Rollins
Litigation Counsel
John J. Vecchione
Senior Litigation Counsel

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NCLA Amicus Brief Asks Ninth Circuit to Stop Bureau of Land Management from Writing Criminal Laws

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