10th Circuit: NM Laws Purporting To Authorize “Self-Help” Preempted


On December 8, the U.S. Court of Appeals for the Tenth Circuit decided the case of United States v. Board of County Commissioners of Otero County, New Mexico. The Tenth Circuit held that a New Mexico statute and resolution adopted by the Otero County Board of County Commissioners (Board) which purported to authorize the Board to take unilateral steps to mitigate the fire dangers posed by very dry conditions in the Lincoln National Forest were preempted by federal law. The Tenth Circuit, affirming the lower court, ruled that the Property Clause of the U.S. Constitution authorized the federal government to promulgate rules governing the use of the national forests and, insofar as local laws intended to abate these dangers conflicted with federal law, they were preempted.

Over the years, the State of New Mexico has suffered from major forest fires originating on federal land, and a 2001 New Mexico law authorized County Commissioners to take appropriate actions to address the dangerous conditions on federal forest lands, especially when the Forest Service appeared to be unresponsive to local concerns. Recently, Otero County developed plans to restore 69,000 in the Lincoln National Forest by extracting small and dead trees and wood material, and to treat thousands of acres in which the Mexican Spotted Owl is present.

The Forest Service was notified of these plans but did not approve them and, concerned that Otero County was about to take immediate action, filed a lawsuit in federal court seeking a declaration that these state and local laws are preempted by federal law. The lower court agreed that these laws are preempted.

On appeal, the Tenth Circuit noted that binding Supreme Court precedent required it to reject Otero County’s arguments. The Property Clause gives the federal government plenary power over federal property and, under the Supremacy Clause, conflicting state and local laws must give way. In a footnote, the Tenth Circuit commented that the County may have a right to take action when the fire dangers are ‘immediate,” but even so permission to take remedial actions on federal land requires federal permission.