LCRA and Corp of Engineer Property

[TEX]

Wasn't the law just recently changed concering LCRA property and is Corp of Engineers property treated like a National Forest (can carry) or a National Park (can't carry)?

Thanks - TEX

[frankie_the_yankee]

The law was changed this year. LCRA property is no longer off limits. Technically, the LCRA's ban has been unenforceable since 2005. But this year they spelled it out in black and white.

I don't know about Army Corps of Engineers property, but others can fill in that blank.

[Texian]

I don't know about Army Corps of Engineers property, but others can fill in that blank.

Here you go:

e-CFR Data is current as of December 13, 2007


Title 36: Parks, Forests, and Public Property
PART 327—RULES AND REGULATIONS GOVERNING PUBLIC USE OF WATER RESOURCE DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS

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§ 327.13 Explosives, firearms, other weapons and fireworks.

(a) The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons is prohibited unless:

(1) In the possession of a Federal, state or local law enforcement officer;

(2) Being used for hunting or fishing as permitted under §327.8, with devices being unloaded when transported to, from or between hunting and fishing sites;

(3) Being used at authorized shooting ranges; or

(4) Written permission has been received from the District Commander.

(b) Possession of explosives or explosive devices of any kind, including fireworks or other pyrotechnics, is prohibited unless written permission has been received from the District Commander.

BTW, The heading above in CFR, Title 36, Part 327 refers to "administered by" not "owned by."

[TEX]

So, it sounds like, technically, if someone were to be in George Bush Park (West of Addicks Dam in Houston) flying kites with their kids, or walking the trails at Cullen Park (North of Katy), they would be in violation if they were armed. I belive these are both county parks located on Corp of Engineer Property, so I am curious as to their status, and others, as it relates to CHLs. Normally a county park would not be off limits, but the information supplied by previous posters (Thanks Guys!) indicates that it probably would be.

TEX

[Texian]

Tex,

Here are the rules for GB park (I don't think they can legally prohibit CHL holders w/ 30.06 signs but IANAL) Got to get moving now but you should be able to use internet search or make phone calls to check on Cullen:

Commissioner Precinct 3 Logo
Commissioner Steve Radack
Precinct Three Park Rules
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1. Vehicles are restricted to designated roads and parking areas. Trucks are not allowed except for light trucks making deliveries. No vehicle to be operated at speeds in excess of posted limits.

2. Visitors must not harm or interfere with the wildlife. Willful destruction or removal of trees, including dead trees, shrubs, vines, wildflowers, grass, ferns, moss, leaves, or cones is prohibited.

3. Fires must be confined to camp stoves or barbecue pits.

4. Only peace officers are permitted to possess weapons within a park, except at designated shooting and archery ranges. Gunpowder, explosives, and fireworks are prohibited.

5. Glass beverage containers are prohibited. Consumption of alcoholic beverages is allowed only under special conditions. Details may be obtained from the park office, (281) 496-2177.

6. Dogs and domestic cats are permitted in parks except for those where signs prohibiting them are posted. Dogs and cats must be confined to vehicles or kept on leashes not more than 6 feet in length. No other animals are allowed in the parks, except that horses are allowed in parks where there are designated equestrian areas.

7. No loudspeakers, public address system, or amplifier is to be operated in park without prior written permission from the park superintendent.

8. No special events may be held in a park without prior written permission from the park superintendent and liability insurance.

9. No solicitations of donations or contributions is permitted in the parks without prior written permission from the park superintendent or pursuant to written contract authorized by the Harris County Commissioners Court.

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Park links: Parks | Park Locations | Home

[striker55]

Can I have my weapon in my car while in the park? This is good information, I did not know about being illegal to carry and have been up till now while on a picnic. I assumed because of the shooting range I could carry.

[Purplehood]

How do we verify that the info provided by the Commissioner and/or other Governmental entities are actually correct? Isn't there some sort of CFR that states that State Law overrides any of these regulations (as in the US Post Office regs)?

[mr.72]

Isn't there some sort of CFR that states that State Law overrides any of these regulations (as in the US Post Office regs)?

Maybe ... In the same section:

§ 327.26 State and local laws.

(a) Except as otherwise provided in this part or by Federal law or regulation, state and local laws and ordinances shall apply on project lands and waters. This includes, but is not limited to, state and local laws and ordinances governing:
...
(3) Use or possession of firearms or other weapons;
...
(b) These state and local laws and ordinances are enforced by those state and local enforcement agencies established and authorized for that purpose.

[65 FR 6903, Feb. 11, 2000]

Now, the first sentence in (a) is legalese that should be interpreted by someone expert in the art of interpreting legalese . I suspect the intent is to say that these rules in the CFR are to be enforced, and additionally any applicable state and Federal laws are also to be enforced. But it doesn't seem to be worded such that it intentionally yields the CFR to state law...

But the argument could be made that this tends to say that the state and local laws are in force, in which case any property owned by a "governmental entity" cannot be prohibited for concealed carry, and most (all?) Corps of Engineers lakes and properties are owned by the county, state, or city, and therefore they cannot be prohibited. Just like a post office.

[couzin]

Corps land is Federally owned land - therefore, Federal (Corps) rules applies (the National Park rule does not apply to Corps lands). The entities that license ('lease') land from the Feds (including the State, city, county, even private lessees) are still subject to the applicable code of federal regulations (in this case - Corps regs). While not likely that one of the Corps folks with citation authority would write you a ticket if they discovered a gun with or on you - it is still possible. OR - the Corps personnel (including the park attendants) could just call local law enforcement in which case you might get swept up in a crap storm. You gotta consider the risks I guess.

I've posted this letter I got back from Corps office of counsel several times here http://www.texasshooting.com/TexasCHL_F ... 19#p251919. Hopefully, the regs will get changed - but given the current administration, I doubt it.

[mr.72]

couzin, whether the Feds think their rules are in force and supersede state law is not the question. Of course they are going to claim that. But it remains that the Federal Gov't is most certainly a "governmental entity" and therefore cannot prohibit concealed carry according to Texas state law, unless they are a polling place during voting or a court house, etc.

So the state law is at odds with the CFR and the question is, which law applies?

Apparently even the Bill of Rights do not apply universally to supersede state law, so why can a CFR supersede the state law? Or even how can a CFR supersede BOTH state law AND the Bill of Rights?

[couzin]

I am not a constitutional lawyer nor do I pretend to be one on television. Here is my understanding from way back in the political science days. Federal regulations are considered legally binding as statutory law, provided the regulations are based on the authority found in the USC (United States Code). This was decided by SCOTUS in 1981 (Chevron ruling?).

While you are correct that the States are sovereign and have the plenary power to make laws - they cannot do so IF it is reserved by the Constitution, federal statutes (and by extension, regulations per the first paragraph above), or international treaties (especially so if Federal owned land is the issue - which is the case here). If an State (or an individual I guess), wants to exert the State decided authority and the claim presents an issue with Federal law, and the appeal can make it past the state supreme courts, then, one could potentially see the issue before the SCOTUS. I believe the SCOTUS would whip out the 1981 ruling and the issue would come back to the lower courts if the appellant wanted to try again.

Frankly - I don't have the money or time to challenge the issue.

[srothstein]

Mr. 72,

This is an interesting academic discussion on the finer points of the law. I like the possibility of the excuse that the CFR states that state law applies. But, in all honesty, since it does say "unless otherwise specified", I am guessing the court would say "not carrying on Corps land" was other wise specified and over rides the state law.

I could be wrong of course.

Ont he Bill of Rights not applying, we have two different things to look at. I feel the Second has always applied to the local and state governments based on its wording "not be infringed" as opposed to "Congress shall make no law". It is clear the First was never intended to apply to the states and not clear that the Second was not. As with many others, I believe the 14th automatically incorporated everything in the BOR. But I also have to look at the current recognized state of the law in teh US. SCOTUS created and recognizes selective incorporation. So, yes, some of the BOR does not apply to the states yet, according to them. Unless those of us who disagree are ready to take up the arms to prove our point (and I am not yet at that point), SCOTUS gets to make the rules on this.

But, if you want a really good academic (law class exam type question), I would look into the constitutionality of the CFR's at all. One of the interesting points that has not yet been discussed in court (to the best of my knowledge) is if the CFR is binding law. Almost all of the agencies created that have the authority to write regulations in the CFR are part of the executive branch. The Constitution clearly states that all legislative power resides in Congress. There is no mention of a power to delegate this authority to anyone. It is conceivable that Congress could possibly create some agencies with that authority that would report to them and be part of the legislative branch, but I know of no such agency right now (off the top of my head, again, I could be wrong). Congress loves to yell about separation of powers when the FBI tries to investigate them. So isn't the delegation of the legislative power to the executive branch also a violation of the separation of powers clauses of the Constitution? I do not see how Congress could have it both ways on separation of powers. And if they are unconstitutional, then they simply mean nothing anyway.

Remember, I raise this purely as an academic discussion on legality and I am not a lawyer. I am not suggesting anyone take this as legal advice, but I have to admit to being curious how the courts would see it.

EDIT: I am going to have to look up the ruling Couzin just mentioned. He posted while I was typing and I may need to retract this concept as rejected by SCOTUS.

[Mike1951]

I'm in WAY over my head here, but I have always heard that CFR's are not binding unless codified in the USC.