United States v. Bd. of Cnty. Comm'rs of Otero

Decision Date30 September 2015
Docket NumberNo. 12-CV-0120 MCA/SMV,12-CV-0120 MCA/SMV
Citation184 F.Supp.3d 1097
Parties The United States of America, Plaintiff, v. Board of County Commissioners of the County of Otero and The State of New Mexico, Defendants.
CourtU.S. District Court — District of New Mexico

184 F.Supp.3d 1097

The United States of America, Plaintiff,
v.
Board of County Commissioners of the County of Otero and The State of New Mexico, Defendants.

No. 12-CV-0120 MCA/SMV

United States District Court, D. New Mexico.

Signed September 30, 2015


184 F.Supp.3d 1101

Ignacia S. Moreno, Assistant Attorney General, Andrew A. Smith, Michael H. Hoses, Ruth Fuess Keegan, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP, Martin E. Threet, Martin E. Threet & Associates, Albuquerque, NM, Mark L. Pollot, Boise, ID, Nicholas M. Sydow, New Mexico Attorney General, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Pacific Legal Foundation's Motion for Leave to File Brief Amicus Curiae [Doc. 83], Otero County's Motion for Summary Judgment

184 F.Supp.3d 1102
Doc. 63], and The United States' Motion for Summary Judgment [Doc. 70]. Having considered the parties' submissions, the relevant law, and otherwise being fully advised in the premises, the Court DENIES Pacific Legal Foundation's Motion for Leave to File Brief Amicus Curiae, DENIES Otero County's Motion for Summary Judgment, and GRANTS The United States' Motion for Summary Judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves a challenge by Plaintiff United States of America to a 2001 statute enacted by Defendant State of New Mexico, N.M. Stat. Ann. § 4-36-11 (2001), and to a 2011 resolution (number 05-23-11/99-50) ("Resolution") enacted pursuant to the New Mexico statute by Defendant Otero County Board of County Commissioners ("Otero County/County"). The United States' Complaint for Declaratory and Injunctive Relief [Doc. 1] raises two counts. The first count seeks a declaration against the State of New Mexico that Section 4-36-11 is in conflict with and interferes with federal law, that Section 4-36-11 violates the Supremacy Clause of the United States Constitution, and that Section 4-36-11 therefore is preempted by federal law and is unconstitutional. [Id. ¶ 55]. The second count seeks a declaration that the Otero County Resolution is in conflict with and interferes with federal law, that the Otero County Resolution violates the Supremacy Clause, and that the Otero County Resolution therefore is preempted by federal law and is unconstitutional. [Id. ¶ 61].

The timing of the New Mexico legislature's passage of Section 4-36-11 in the early part of 2001 suggests that the legislature passed the statute in response to the disastrous Cerro Grande fires the previous year. See Robert B. Keiter, The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation , 36 Envtl. L. 301, 360 (2006). Subsection A of the New Mexico statute contains the following legislative findings: (1) New Mexico citizens and officials "have repeatedly petitioned the United States forest service ... to request that the forest service take appropriate action to remove or eliminate the conditions that have created a state of emergency ... in and adjacent to national forests within New Mexico," N.M. Stat. Ann. § 4-36-11(A)(1) ; (2) "all the petitions have for all practical purposes been either ignored or discounted by the United States forest service," id. § 4-36-11(A)(2) ; (3)

"it is a fundamental principle under the laws of any just society that the persistent failure of a sovereign to fulfill such obligations constitutes grounds for the forfeiture of jurisdictional supremacy," id. § 4-36-11(A)(3) ; (4) "such a forfeiture must hereby be recognized and declared," id. ; and (5) "a jurisdictional vacuum" has been created because of the United States' forfeiture that "requires" New Mexico "to acknowledge its obligations as a sovereign power to protect the lives and property of its citizens and consequently to authorize any action it presently deems necessary to fill the vacuum created by the federal government by assuming jurisdiction to reduce to acceptable levels, if not remove, the threat of catastrophic fires posed by present conditions in national forests," id. § 4-36-11(A)(4). Subsection B comprises declarations of "a disaster within those areas of the national forests of New Mexico that suffered severe fire damage" where "large amounts of forest undergrowth have created the potential for damaging fires in the future" that is "of such magnitude that the police power of the state should be exercised to the extent necessary to provide the resources and services that will end the disaster and mitigate its effects." Id. § 4-36-11(B). Subsection C authorizes the board of county commissioners of a

[184 F.Supp.3d 1103

county in which a disaster has been declared after "consulting with the state forester and the regional United States forester, taking surveys, holding those public hearings as may be necessary and developing a plan to mitigate the effects of the disaster," to "take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damages trees within the area of the disaster." Id. § 4-36-11(C).

Otero County adopted its Resolution on May 23, 2011, and entitled it, "RESOLUTION #05-23-11/99-50 DECLARING AN EMERGENCY IN OTERO COUNTY, NEW MEXICO DUE TO EXTREME DROUGHT, HIGH FIRE CONDITIONS, AND THE MAYHILL FIRE." [Doc. 1-2 at 1]. The relevant portions of the Resolution provide as follows:

NOW THEREFORE , hereby be it resolved that the Board of County Commissioners of Otero County declares a state of emergency and disaster to exist in and around the communities and watersheds in the Sacramento Mountains including the ... areas identified as critical in the Otero County Community Wildfire Protection Plan; and

...

BE IT FURTHER RESOLVED that the Board of County Commissioners hereby formally notifies State and Federal officials that pursuant to NMSA 1978 § 4–36–11C, it is empowered to, after consulting with the State Forester and the Regional United States Forester, taking surveys, holding those public hearings as may be necessary and developing a plan to mitigate the effects of the disaster, as a county in which a disaster has been declared pursuant to Subsection A of NMSA 1978 § 4–36–11 may 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.
Id. at 2].

The United States' Supremacy Clause challenge to the state statute and county Resolution rests on the language providing that the county need only "consult" with the United States Department of Agriculture ("USDA") Forest Service ("Forest Service") prior to clearing or thinning undergrowth or removing or logging trees on National Forest Service ("NFS") lands, and on the absence of language requiring the county to obtain Forest Service authorization, as required by federal law, prior to treating NFS lands.

Following its adoption of the Resolution, Otero County "contracted with Dr. Lawrence D. Garrett, Consultant, M3 Research, to complete a study and recommendation concerning thinning, restoration, fuels reduction, and return of the resource to pre-settlement conditions," [Doc. 71-1 at 4, ¶ 12 (internal quotation marks omitted) ], and, in August 2011, Dr. Garrett completed a plan for the county's action titled, "A Restoration Plan for Landscape Reference Condition Treatments in Areas around Cloudcroft New Mexico" (the "Garrett Plan"), [id. at 5, ¶ 15]. "The Garrett Plan proposes to ‘restore’ 69,000 acres on the Sacramento Ranger District of the Lincoln National Forest." [Id. at 5, ¶ 18]. This restoration would entail removing primarily small and medium size (five to twelve inch at breast high and 20 to 60 feet tall) standing live and dead trees and wood materials. [Id. ].

Ronnie Rardin ("Rardin") is a duly-elected Otero County Commissioner serving on the Otero County Board of County Commissioners who is authorized to make statements on behalf of the board and on behalf of Otero County. [Doc. 64-1 at 1, ¶ 1]. Rardin attests that Otero County intends to "continue to physically carry out

[184 F.Supp.3d 1104

the Garrett Plan until the threat to [its] citizens and their private property is resolved." [Id. at 2, ¶ 6]. Rardin further asserts that "[Otero County] will continue to consult with [the Forest Service] and attempt to find cooperative solutions, but failing those type of cooperative solutions it is the County's intention to take physical action with or without the consent of the Forest Service." [Id. ].

Robert G. Trujillo, Ph.D. ("Trujillo") was employed by the Forest Service and served as the Forest Supervisor for the Lincoln National Forest at the time of the facts giving rise to this action. [Doc. 71-1 at 1, ¶ 1]. In this capacity, Trujillo was "responsible for the management of the Lincoln National Forest in accordance with all laws, policies, and regulations that govern management of [NFS] lands, including the National Environmental Policy Act (NEPA), the Endangered Species Act, and the National Forest Management Act (NFMA)." [Id. ]. In his declaration, Trujillo attests that "[i]mplementation of [the Garrett Plan] without a permit would effectively deprive the Forest Service of the Agency's ability and duty to comply with numerous Federal laws and regulations, including NEPA, Endangered Species Act, NFMA, and the Clean Water...

To continue reading

Request your trial
4 cases
  • Endrew F. v. Douglas Cnty. Sch. Dist. Re 1
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • 16 Noviembre 2017
    ...of information and argument presented by the potential amicus curiae to the court. United States v. Bd. of Cty. Commissioners of the Cty. of Otero, 184 F. Supp. 3d 1097, 1115 (D.N.M. 2015), aff'd sub nom. United States v. Bd. of Cty. Commissioners of Cty. of Otero, 843 F.3d 1208 (10th Cir. ......
  • Fischer v. BMW of N. Am., Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 23 Noviembre 2021
    ...... No. 20-1399 United States Court of Appeals, Tenth Circuit November ... States v. Bd. of Cnty. Comm'rs of the Cnty. of. Otero , 184 ......
  • Calmat Co. v. Oldcastle Precast, Inc., Civ. No. 16-26 KG/JHR
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 4 Diciembre 2017
    ...than to advocate a point of view so that a cause may be won by one party or another." United States v. Bd. of Cty. Commissioners of the Cty. of Otero, 184 F. Supp. 3d 1097, 1115 (D.N.M. 2015), aff'd sub nom. United States v. Bd. of Cty. Commissioners of Cty. of Otero, 843 F.3d 1208 (10th Ci......
  • Friends of Animals v. United States Fish & Wildlife Serv.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • 28 Septiembre 2021
    ......Bd. of Cty. Comm'rs of the Cty. of Otero, 184 F.Supp.3d 1097,. 1115 (D. N.M. 2015). . ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT