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Abstract

The United States has the authority to bring claims for trespass on federal land under the statutes of the state in which the trespass occurs. Many states have statutes that codify and often alter the elements of common law trespass while also providing for double or treble damages. Thus, in cases of trespass on federal lands, the government is incentivized to bring claims under state trespass statutes. Doing so adds an alternate theory of liability and maximizes the opportunity to recover adequate damages. 28 U.S.C. § 2415(b), in part, sets a six-year statute of limitations for when the United States can bring an action to “recover damages resulting from trespass on lands of the United States.” However, the statute of limitations under most state trespass statutes is only three years.

It is unclear whether section 2415(b) preempts state statutes of limitations for statutory trespass because it may be construed to apply only to federal statutes and regulations and common law trespass. As to federal trespass, federal law (including statutes of limitations) clearly governs when available. As to common law trespass, it is distinct from most if not all state trespass statutes because these statutes typically change the elements required for liability, creating what might reasonably be viewed as an entirely different cause of action, to which section 2415(b) does not apply. However, the legislative history, the case law (both before and after the law’s passage), and current policy arguments largely support preemption. Ultimately, section 2415(b) ought to apply to all trespass cases on federal lands. This rule is in the best interest of the public by virtue of preserving the lands managed in trust for the public by the federal government.

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