Issues of concern to people who live in the west: property rights, water rights, endangered species, livestock grazing, energy production, wilderness and western agriculture. Plus a few items on western history, western literature and the sport of rodeo... Frank DuBois served as the NM Secretary of Agriculture from 1988 to 2003. DuBois is a former legislative assistant to a U.S. Senator, a Deputy Assistant Secretary of Interior, and is the founder of the DuBois Rodeo Scholarship.
Sunday, December 11, 2016
Ruling ends New Mexico county’s effort to combat wildfire danger
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. 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...more