Impact of Apache County resolutions is disputed

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As Montezuma County officials consider whether to assert control over the roads in the San Juan National Forest, some are looking to Apache County, in northeastern Arizona, for guidance.

That’s because in the fall of 2011, Apache County stepped up following the enormous Wallow Fire to assert control of cleanup efforts — or a lack thereof, in their opinion – in order to demand thinning around their neighborhoods.

The Board of Supervisors passed two ordinances. In one of them, the county’s governing body “hereby formally demands that State and Federal officials take immediate action to eliminate hazardous conditions in and around the communities and watersheds in and around the Apache-Sitgreaves National Forest.”

While they were at it, the supervisors took a stand over some post-fire road closures they deemed inappropriate and unnecessary. “NOW THEREFORE,” states the second ordinance, “hereby be it resolved that The Board of Supervisors of Apache County hereby asserts its inherent right to control and manage the roads, rights-of-way and routes of travel located within the United States Forest Service land and Bureau of Land Management land located within the boundaries of Apache County … .”

In that same ordinance, the county supervisors gave themselves the right to destroy any gates or other barriers to the federal public lands: “any existing physical obstructions, gates or other impediments on any roads, rights-of-way or routes of travel located on National Forest Service or Bureau of Land Management lands be immediately removed. The Apache County Sheriff is directed to ensure the removal of such obstructions or to execute such removals at the expense of the persons or agencies responsible for their placement or maintenance.”

The county’s natural-resource coordinator, Doyel Shamley, forged an alliance with a group called Defend Rural America, which aims to use the constitution to curtail federal powers, especially where they interfere with property rights and the autonomy of local governments.

Defend Rural America now claims a major victory in Apache County, touting the actions there as a “success story” with demonstrable results. But those claims are disputed.

The flare-up did lead to small-scale collaborative efforts between Apache County and the Apache-Sitgreaves National Forest to address the fire-hazard reduction goals the county supervisors had in mind. Crews have been going out for more than a year now to thin an overgrowth of brush and small-diameter trees on 85 acres near residential areas.

But not a single gate erected by the Forest Service or any other federal agency has been breached, and as far as Apache-Sitgreaves Forest Supervisor Jim Zornes knows, no closures have been violated.

“On the forest, actually nothing has changed,” he said. He said the county’s ordinances amounted to symbolic gestures, where federal law is the rule: “National forests are not necessarily governed at the discretion of the county.”

He said in 2011, the agency was poised to defend its Congress-granted jurisdiction over the forest if needed, but it never came to that. “We were ready. Our U.S. attorney was ready. It probably could have boiled up and we could have gone to court over it. Cooler heads prevailed,” he said.

But Zornes added that the ordinances led to positive changes, with the county and forest communicating more than before. The forest treatments are evidence, but there’s also been more openness about the necessity of road closures to safeguard public safety.

“My commitment to them is, if a gate is locked, the road is out,” Zornes said.

Underneath Apache County’s big stand is a tension between federal and state rights that’s as old as the nation. And since the dawn of increasing environmental regulations such as the Clean Air Act, the Clean Water Act and the Endangered Species Act in the 1960s and 1970s, Western states in particular have made sporadic attempts to take back control of federal public lands. So far, none of those attempts have been successful.

Arizona Gov. Jan Brewer vetoed a bill in May 2012 that would have initiated a state attempt to take over federal forests. A state ballot measure in November sought the same results, but was soundly defeated.

Two other efforts to usurp federal control of national forests wound up in court recently.

In the first case, county commissioners in New Mexico’s Otero County declared a state of emergency in May 2011 to allow themselves to conduct forest treatments to address insect outbreaks and fire hazards within the Lincoln National Forest, in south central New Mexico. They relied on the authority of a 2001 New Mexico statute that provides, “a board of county commissioners for a county in which a disaster has been declared . . . may take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees within the area of disaster.”

The statute specifically identifies the lands to be declared disaster areas as “those areas of the national forests of New Mexico that suffered severe fire damage, as determined by the local board of county commissioners.”

The United States filed suit against Otero County and the state of New Mexico last year. The attorney general’s complaint references the “preeminent and well-settled federal authority and responsibility over management of National Forest System lands,” which begins with the Constitution’s Property Clause and is further detailed in the Organic Administration Act, the National Forest Management Act and many other federal laws. That case is pending in U.S. District Court in New Mexico.

In the second case, Utah Gov. Gary Herbert signed a bill into law in April that tried to limit the powers of federal law-enforcement officers in Utah’s federal public lands, and the federal government promptly sued based on the grounds that the bill was unconstitutional and interfered with the federal agencies’ mandates.

U.S. District Judge David Nuffer blocked the Utah bill with a preliminary injunction, saying the feds were likely to prevail — leading the Utah legislature to repeal the bill.

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From August 2013.