Monday, June 10, 2013

Otero County sheriff House shuts down welder in Lincoln Forest - Forest Service questions his authority

When Lincoln National Forest Sacramento District authorities questioned Otero County Sheriff Benny House's authority because he shut down a contractor welding on a pipe fence in the Lincoln Forest May 24, House told LNF authorities he did shut it down. The project was being done in the Lincoln National Forest's Agua Chiquita Road area. With Stage Two fire restrictions in the Lincoln National Forest in the Sacramento, Smokey Bear and Guadalupe districts since May 11, House believes it was the right thing to do by shutting down the maintenance project. Fire restrictions also had been in place for Bureau of Land Management lands and Otero County had a county-wide burn ban in place May 10. State Forestry fire restrictions also were in place. All the fire restrictions prohibited welding during the drought conditions. "With the fire restrictions and severe drought in the forest right now, even though it's an approved project by the Lincoln National Forest, the Sheriff's Office felt that there is too great a risk for there to be welding and cutting material in the forest," House said. "The Sheriff's Office was monitoring the area. We found it was being done through a private contractor. They were working in an area that's covered by the fire restrictions. We shut the contractor down and gave them a verbal warning to cease operations until the fire restrictions are lifted." House said Sacramento Ranger District Ranger James Duran contacted him. "He questioned my reasoning and ability to shut down a National Forest project on the Lincoln," House said. "I told him that I felt I do have the authority to protect the Lincoln National Forest as well as the property owners in the mountain areas and the project is not going to continue until the county gave authorization for the contractor to continue when the fire restrictions were lifted. Neither of that has happened. A lot of the work is continuing that doesn't involve welding or the use of cutting torches. They're still doing work on the project, but it's work that doesn't require the use of welding or cutting equipment."...more

The Sheriff, in compliance with state law, shut down a Forest Service approved project.  So what do the federales say?

Duran said the district is the land-management agency that authorized it. "There have been some issues with the contractor," Duran said. He said he believes there may be some misconceptions about the Sheriff Office's authority, but it falls under our authority and management. "It's an approved project," Duran said. "It's been in place. We're moving forward. I know there were some questions about fire conditions, but we identified mitigations and those concerns were dismissed. We were fully prepared to do the work safely and reduce the risk. If we could not have done the work safely, we wouldn't have authorized it. We did provide an exemption from our forest restrictions to the contractor. As the managing agency, we provide exemptions to folks on the National Forest to do work when it's dry." He said he believes the mitigation for the fire risk was forest service personnel, with resources available and water onsite.

That's not what the Sheriff found:

House said he and deputies found no water trucks at the work site or fire apparatus nor were area fire departments notified about the welding project.  "Fire dangers are extreme right now," he said. 

Now let's get back Duran saying, "there may be some misconceptions about the Sheriff Office's authority." State Forestry had issued fire restrictions which included no welding.  Does Duran believe this state law doesn't apply to activities on Forest Service land as part of the police power of the state?  Duran says they provided "exemptions" to the contractor.  Does Duran believe he can offer exemptions to state law? 

Let's take another example.  Does Duran believe state game laws apply to wildlife on Forest Service land?  Does he believe he can provide "exemptions" to state game laws? The state retains "exclusive legislative jurisdiction" over all lands within the state unless the state purposely cedes that back to the feds.  The welding could have been shut down by State Forestry, the State Police or the sheriff's office. 

Sheriff House has his take on it:

"We're keeping our fingers crossed and praying for rain. We're all walking on pins and needles because of the fire danger. We can't intentionally put the public at risk right now. We have to be diligent on public and private lands to prevent fires. I have a duty to protect life, our lands and property, while protecting the public's rights."

Good job, Sheriff House.



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