United States v. Bd. of Cnty. Commissioners of Otero, 15-2210

• Decision Date: 08 December 2016
• Docket Number: No. 15-2210,15-2210
• Parties: United States of America, Plaintiff–Appellee, v. Board of County Commissioners of the County of Otero, Defendant–Appellant, and State of New Mexico, Defendant. Pacific Legal Foundation, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

843 F.3d 1208

United States of America, Plaintiff–Appellee,

v.Board of County Commissioners of the County of Otero, Defendant–Appellant,andState of New Mexico, Defendant.

Pacific Legal Foundation, Amicus Curiae.

No. 15-2210

United States Court of Appeals, Tenth Circuit.

FILED December 8, 2016

Dori E. Richards (A. Blair Dunn, with her on the briefs), Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, for Appellant.

David C. Shilton (Nicholas L. Pino, USDA Office of General Counsel, Albuquerque, New Mexico, John C. Cruden, Assistant Attorney General, and Andrew A. Smith, with him on the brief), Environment and Nat. Res. Div., U.S. Department of Justice, Washington, D.C., for Appellee.

John M. Groen and Anthony L. François, Pacific Legal Foundation, Sacramento, California, filed an Amicus Curiae brief in support of Appellant.

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.

HARTZ, Circuit Judge.

A New Mexico statute and a resolution adopted by the Otero County Board of County Commissioners purported to authorize the Board to mitigate fire danger in the Lincoln National Forest without first obtaining permission from the U.S. Forest Service. The United States obtained a judgment from the United States District Court for the District of New Mexico invalidating the statute and the resolution. The Board appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Property Clause of the United States Constitution authorizes the federal government to promulgate regulations governing use of national forest lands; and under the Constitution's Supremacy Clause and binding precedent, those regulations prevail over any contrary state or local law.

I. BACKGROUND

In recent years New Mexico has suffered from major fires originating on federal land within the state. Apparently in response to a devastating fire that consumed many homes in the city of Los Alamos, the state legislature in 2001 enacted a statute authorizing self-help by local communities. Recognizing "inaction on the part of the forest service to appropriately reduce, if not remove, the risk to the lives and property of the citizens of New Mexico," the statute enabled "a board of county commissioners for a county in which a disaster has been declared ... [to] take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees within the area of the disaster" after, among other things, consulting with the Forest Service. N.M. Stat. Ann. § 4–36–11(A)(2), (C) 1978.¹

Fire danger from federal land was a significant concern in Otero County, where over 75% of the land is owned by the United States. On May 6, 2011, the Sacramento Ranger District issued a letter "closing the Lincoln National Forest due to the drought and extremely high fire risk." Cty. Resolution, Aplt. App., Vol. I at 30. The Board followed suit on May 23, passing a resolution declaring "a state of emergency and disaster ... in and around the communities and watersheds in the Sacramento Mountains." Id. at 31. The resolution noted the County's statutory authority to take any necessary action to remove hazardous vegetation within the area after consulting with the Forest Service.²

The Board retained a consultant to prepare a plan to mitigate the danger. The plan proposed to "restore" 69,000 acres in the Lincoln National Forest by extracting "small and medium size ... standing live and dead trees and wood materials." Dist. Ct. Summ. J. Opinion, Aplt. App., Vol. II at 388 (Dist. Ct. Op. at 4) (internal quotation marks omitted). A modified plan called for the "treatment of 1,200 to 1,500 acres ... in an area within Mexican Spotted Owl (MSO) habitat with MSO present in the area." Dist. Ct. Op. at 8 (internal quotation marks omitted). The Board decided to implement the plan and notified the Forest Service. The Forest Service did not approve the proposed measures.

When the Board indicated that it was going to execute the plan anyway, the United States sued the Board and the State of New Mexico in federal court seeking a declaration that the resolution and its enabling statute were preempted by conflicting federal law. The United States also sought to enjoin public officials from implementing the plan on federal lands without prior approval from the Forest Service. It relied on federal regulations requiring Forest Service consent before anyone could cut, damage, or remove trees or brush from a national forest.

The district court granted summary judgment to the United States. The court first ruled that because the threatened injury (actions on federal land without Forest Service approval) was impending at the time of suit, the United States had standing and its claims were ripe for adjudication. On the merits the court held that "the Property Clause grants the federal government plenary power over federal lands, and consequently ... the Tenth Amendment does not reserve an exclusive sovereign right to New Mexico to regulate federal lands in contravention of federal law." Id. at 9. The state statute and local resolution thus were preempted under the Supremacy Clause, as they conflicted with federal law. The court rejected the State's suggested construction of the statute to make it consistent with federal law, saying that the suggested construction was contrary to "the statute's plain and unambiguous language [and] its legislative intent." Id.

The Board, but not the State, appeals. It does not challenge the district court's rulings on standing and ripeness. And, consistent with the position it took in the district court, it offers no argument that the resolution or statute can be read in a manner consistent with federal law. It frames the sole issue on appeal as: "[D]oes the Property Clause of the United States Constitution so thoroughly preempt state power that a state may not, under any circumstances, remove a deadly and destructive nuisance from National Forest lands even where the United States refuses or fails to remove that danger itself[?]" Aplt. Reply Br. at 1.

II. DISCUSSION

There is no dispute that a local government can ordinarily exercise its police powers to mitigate fire danger within its territorial boundaries. But a federal regulation promulgated by the Department of Agriculture requires permission of the Forest Service before anyone can "[c]ut[ ] or otherwise damag[e] any timber, tree, or other forest product" in a national forest. 36 C.F.R. § 261.6(a) [ (2016) ]. The Board has not questioned the statutory authority to promulgate the regulation. The issue before us is solely one of constitutional power. The constitutional authority invoked by the United States is the Property Clause, which states: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const. art. IV, § 3, cl. 2.

Although the United States has title to the Lincoln National Forest, the Board contends that the federal government's power over that land under the Property Clause must be limited. It says that the federal regulation at issue here reaches beyond the proper scope of the Property Clause because it "deprives the State of New Mexico and Otero County of the ability to protect the health, safety and welfare of their citizens ... , skewing the ‘healthy balance of power’ between the States and the Federal government." Aplt. Br. at 33.

According to the Board, "It is both troubling and nearly inconceivable ... that the federal government would have unfettered and absolute authority over lands not expressly proclaimed by the Constitution as necessary for federal governance." Id. at 23–24. In particular, it says, the Property Clause does not grant the federal government "absolute, unfettered plenary power" to prohibit the States from taking measures they deem necessary "to protect their citizens from impending harm." Id. at 40–41. This power not being conveyed to the federal government, the argument continues, it must be reserved to the States under the Tenth Amendment. See U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."). Thus, when, as in this case, "the United States fails or refuses to remove from federal lands a condition that poses an imminent threat of extreme danger to the life and property of a state's citizens, ... the Tenth Amendment reserves to the state powers sufficient to take reasonable, minimally invasive steps to abate the dangerous condition." Aplt. Reply Br. at 7.

Binding precedent requires us to reject the Board's argument. The Supreme Court, followed by this court, has declared that the Property Clause gives the federal government plenary power, including 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 under the Supremacy Clause when they conflict with federal law under the Property Clause.

We begin with the Supreme Court's decision in Kleppe v. New Mexico , 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976), which reviewed the constitutionality of the Wild Free–Roaming Horses and Burros Act (Wild Horses Act), 16 U.S.C. §§ 1331 –1340. Congress passed the Act "to protect all unbranded and unclaimed horses and burros on public lands of the United States" and specified that "all such horses and burros on the public lands administered by the Secretary of the Interior ... or by the Secretary of Agriculture ... are committed to the jurisdiction of the respective Secretaries." Kleppe , 426 U.S. at 531, 96 S.Ct. 2285 (internal quotation marks omitted). Seeking to exercise control over wild horses and burros on federal lands, the State of New Mexico sought a declaration that the Act was unconstitutional. See id. at 534, 96 S.Ct. 2285. It argued in part that the...