Does Virginia or the federal government have jurisdiction over the Langley Air Force Base West Gate and Search Facility?

Plain-English summary

The City of Hampton's city attorney and acting commonwealth's attorney asked whether the United States held concurrent jurisdiction over the Langley Search Facility and the Langley West Gate at Joint Base Langley-Eustis. The answer mattered for which sovereign's law applied and which prosecutor could file charges for crimes committed there.

The AG concluded that the United States did not hold concurrent legislative jurisdiction over those facilities. Virginia retained jurisdiction.

The legal framework is straightforward. The federal government can exercise four types of jurisdiction over its property in a state: exclusive, concurrent, proprietary, or partial. Concurrent means state and federal law enforcement enjoy equal authority. Proprietary means only the state and local authorities have authority; the federal government holds title but no legislative power. For land acquired after 1940, federal law requires the United States to file a notice of acceptance with the Governor (or accept in another manner prescribed by state law) in order to obtain concurrent jurisdiction. If the United States doesn't file the notice, "[i]t is conclusively presumed that jurisdiction has not been accepted."

The United States acquired the land where the Search Facility and West Gate sit through deed and lease sometime after 1940. The AG's office had a mid-1970s Inventory of Jurisdiction (compiled with representatives of the United States) and a Map showing the legislative jurisdiction at Langley Air Force Base. Both indicated the United States held proprietary jurisdiction over the land in question. The AG also was not aware of any notice of acceptance filed with the Governor for those two facilities.

Virginia law does cede concurrent jurisdiction to the United States for all lands it later acquires, but the AG read that as an offer the federal government must accept, not a self-executing grant. Because Virginia law prescribes no "other manner" of acceptance, the mere recording of a deed, without the affirmative act of acceptance, does not change jurisdiction. Federal law still requires the United States to file the notice of acceptance with the Governor.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The jurisdictional status of any particular military installation can change if the federal government later files a notice of acceptance. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the difference between proprietary and concurrent jurisdiction?
Under "proprietary" jurisdiction, the federal government owns the land but has no legislative authority over it. State law applies, state courts have jurisdiction, and state and local police can enforce. Under "concurrent" jurisdiction, both federal and state authorities have legislative power. A crime can be prosecuted in either state or federal court.

Why does this matter at an Air Force base?
Because it determines which prosecutor handles a crime that happens on base. Where federal jurisdiction is only proprietary, state and local prosecutors keep authority. Where it's concurrent, federal prosecutors can also charge.

Why does land acquired after 1940 turn on a notice of acceptance?
For interests in land acquired after 1940, the opinion explains that federal law lets the United States accept legislative jurisdiction by filing a notice of acceptance with the Governor (or in another manner prescribed by state law). If it does not, jurisdiction is conclusively presumed not to have been accepted.

Could the United States accept jurisdiction now?
Yes, by filing the required notice. The notice has to go to the Governor, or be made in another manner prescribed by state law.

What about land the federal government held before 1940?
The opinion addressed only land acquired after 1940. It did not analyze the rule for land the federal government held before then.

Background and statutory framework

Federal jurisdiction over property within a state takes four forms: exclusive, concurrent, proprietary, and partial. As the opinion (quoting prior office guidance) puts it: "Exclusive" means solely to the exclusion of others; "Concurrent" means state and local authorities enjoy jurisdiction equal to that of their federal counterparts; "Proprietary" means state and local authorities enjoy full authority with their federal counterparts having none; and "Partial" means state and local authorities enjoy some authority with the federal officers. All forms except proprietary afford the federal government some legislative jurisdiction. As the opinion notes, quoting the Court of Appeals of Virginia, the phrase "legislative jurisdiction" refers to the "lawmaking power of a state" and "the power of a state to apply its laws" to a particular set of facts.

For interests in land acquired after 1940, federal law provides that the United States may accept legislative jurisdiction "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." If it does not, "[i]t is conclusively presumed that jurisdiction has not been accepted."

Virginia law cedes to the United States concurrent governmental, judicial, executive, and legislative power over lands it later acquires. But because Virginia law prescribes no "other manner" of acceptance, the opinion treats that cession as only an offer the United States must accept by filing the required notice; the mere recording of a deed, without the affirmative act of acceptance, does not change jurisdiction.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Inventory of Jurisdiction (mid-1970s; compiled with representatives of the United States) and Map of legislative jurisdiction at Langley Air Force Base (referenced)
• Prior AG opinion (referenced; four types of federal jurisdiction)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-053_Hudson-Hough.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

January 17, 2013

Cynthia E. Hudson, Esquire
City Attorney for the City of Hampton
City Attorney's Office
8th Floor, City Hall
22 Lincoln Street
Hampton, Virginia 23669

John F. Haugh, Esquire
Acting Commonwealth's Attorney
Office of the Commonwealth's Attorney
236 North King Street
Hampton, Virginia 23669

Dear Ms. Hudson and Mr. Haugh:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You ask whether there presently exists between the Commonwealth of Virginia (the "Commonwealth") and the United States of America (the "United States") concurrent jurisdiction over a portion of Joint Base Langley-Eustis, specifically the portion you designate as the Langley Search Facility and the Langley West Gate (the "Designated Facilities").

Response
It is my opinion that, given the absence of a notice of acceptance filed with the Governor whereby the United States has accepted concurrent jurisdiction over the land on which the Designated Facilities are located, the United States does not hold concurrent legislative jurisdiction over the land on which the Designated Facilities are located.

Background
You state that the United States acquired the land on which the Designated Facilities are located through deed and lease sometime after 1940. In the mid-1970s, this Office, in conjunction with representatives of the United States, compiled an Inventory of Jurisdiction (the "Inventory") that indicates the legislative jurisdiction held by the United States over lands acquired by the United States within the Commonwealth. The Inventory indicates that the legislative jurisdiction held by the United States over Joint Base Langley-Eustis is exclusive jurisdiction in some areas and proprietary jurisdiction in other areas.

In addition, this Office is in possession of a map that illustrates the legislative jurisdiction of the United States at Langley Air Force Base (the "Map"). Like the Inventory, the Map indicates that the United States holds exclusive jurisdiction in some areas and proprietary jurisdiction in other areas. The Map shows the land on which the Designated Facilities are located (land that is just east of the intersection of North Armistead Avenue and Sweeney Boulevard in Hampton, Virginia) and the Map indicates that the United States holds proprietary jurisdiction over the land on which the Designated Facilities are located. I am not aware of any written notice whereby the United States has accepted concurrent legislative jurisdiction over the land on which the Designated Facilities are located.

Applicable Law and Discussion
The federal government may exercise four types of jurisdiction over its property located in the state. Federal jurisdiction may be exclusive, concurrent, proprietary, or partial. As this Office previously has explained,

"Exclusive" means solely to the exclusion of others. "Concurrent" means that State and local law enforcement authorities enjoy jurisdiction equal to that of their counterparts with the United States. "Proprietary" means the State and local authorities enjoy full authority, with their federal counterparts having none. "Partial" means that the State and local authorities enjoy some authority with the federal officers.

Accordingly, all but proprietary jurisdiction afford the federal government some degree of legislative jurisdiction. As the Court of Appeals of Virginia has noted, "[t]he phrase 'legislative jurisdiction' refers to the 'lawmaking power of a state' and 'the power of a state to apply its laws' to a particular set of facts."

For interests in land acquired after 1940, federal law provides that the United States may accept or secure legislative jurisdiction not previously obtained "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." If the United States does not so accept jurisdiction, then "[i]t is conclusively presumed that jurisdiction has not been accepted." Although Virginia law provides that for "all lands hereafter acquired by the United States, the Commonwealth hereby cedes to the United States concurrent governmental, judicial, executive and legislative power and jurisdiction[,]" there is no provision that prescribes "another manner" for the United States to accept jurisdiction. This potential grant of jurisdiction serves only as an offer to the United States that the federal government may then accept. Because no other manner of acceptance is prescribed under Virginia law, the mere recording of a deed without the affirmative act of acceptance of jurisdiction by the federal government does not legally affect any jurisdictional change. Rather, federal law requires that the United States file a notice of acceptance with the Governor in order to obtain concurrent legislative jurisdiction over land or an interest in land that was acquired in the Commonwealth after 1940.

As previously noted, the land on which the Designated Facilities are located was acquired after 1940. I am not aware of any notice of acceptance filed with the Governor of the Commonwealth of Virginia whereby the United States has accepted concurrent jurisdiction over the land on which the Designated Facilities are located. In the absence of such notice of acceptance, "[i]t is conclusively presumed that jurisdiction has not been accepted." Accordingly, I conclude that the United States does not hold concurrent legislative jurisdiction over such land.

Conclusion
Accordingly, it is my opinion that, given the absence of a notice of acceptance filed with the Governor whereby the United States has accepted concurrent jurisdiction over the land on which the Designated Facilities are located, the United States does not hold concurrent legislative jurisdiction over the land on which the Designated Facilities are located.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General