ALBUQUERQUE – A court ruling has dashed any hopes one southern New Mexico county had to address fire danger on national forest lands because of the inaction of the federal government.
The federal appeals court in Denver found that Otero County’s resolution to treat overgrown areas of the Lincoln National Forest along with a state statute enabling counties to take action under certain circumstances conflicted with federal law.
A 10th U.S. Circuit Court of Appeals panel said the case was a question of constitutional power and that federal law pre-empted both the state statute and the county’s resolution.
New Mexico enacted the so called “self-help” law for local communities in 2001, just months after a prescribed fire on federal land escaped from managers and raced across tinder-dry mountainsides and into Los Alamos. The town was evacuated before the flames destroyed hundreds of homes and forced the temporary closure of one of the nation’s premiere nuclear weapons laboratories.
The statute pointed to the inaction of the federal government to reduce the risk to lives and property and enabled commissioners in those counties in which a disaster had been declared to take actions necessary to clean and thin undergrowth or remove or log trees within the disaster area after consulting with the U.S. Forest Service.
Otero County passed its resolution in May 2011. The threat of wildfire was worsening as New Mexico headed into what ultimately became an unprecedented drought.
Over three-quarters of the county is federal land, so the county declared an emergency and a disaster after federal officials closed the Sacramento Ranger District because of drought and high fire danger.
The county then hired a consultant to prepare a plan for restoring thousands of acres of forest land by thinning trees and removing dead material. The Forest Service didn’t approve and took the case to court.
The appellate decision backs up a 2015 lower court ruling.
The courts stated there’s no dispute that a local government can exercise its police powers to mitigate fire danger within its territorial boundaries, but federal regulation requires permission of the Forest Service before anyone can cut or otherwise damage any timber, free or other forest product in a national forest.
The appeals court pointed to precedent, saying the U.S. Supreme Court has found that the property clause of the U.S. Constitution gives the federal government legislative and police power over federal property. Although state and local governments can ordinarily exercise their police powers over federal land within their boundaries, those powers must yield when they conflict with federal law.
The court, however, declined to address questions about whether the county can hold the Forest Service liable under federal common law for maintaining a public nuisance – in this case extreme fire risk – on federal land.
County commission chairwoman Susan Flores said she had not yet reviewed the ruling but noted that fire danger is something the county is still living with.
“Some of the fires we’ve had have been devastating,” she said.
Last summer, on the southern edge of the Lincoln National Forest, flames destroyed dozens of homes and other buildings in the village of Timberon.
