ALBUQUERQUE (CN) – The 10th Circuit upheld a ruling that neither New Mexico nor one of its counties has the right to cut down trees in National Forests without federal permission.
Otero County responded to high-risk fire conditions in 2011 by declaring a state of emergency and passing a resolution claiming the right to “remove or log fire-damaged trees within the area of disaster,” which included 60,000 acres in Lincoln National Forest.
Otero County, east of Las Cruces on the Texas border, an arid 6,628 square miles, has its seat in Alamogordo.
The U.S. Forest Service refused to approve the logging, and when the Otero County Board of Commissioners declared it would do it anyway, the United States sued the county and state.
Chief U.S. District Court Judge M. Christina Armijo ruled in September 2016 that Otero County’s resolution violated the Supremacy Clause of the Constitution.
Otero County appealed, asking whether “the Property Clause of the United States Constitution so thoroughly preempts 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”?
U.S. Circuit Judge Harris Hartz ruled on Dec. 8 that the county “must yield to federal law regarding conduct on federal land.”
But Hartz said the county may seek relief under the Administrative Procedure Act for the Forest Service’s failure to control the fire risk on federal land.
He was joined by U.S. Circuit Judges Jerome Holmes and Scott Matheson Jr.