by Gaily Binkly and David Grant Long | August 1, 2013 10:54 am
A fiery resolution asserting Montezuma County’s ultimate control over Forest Service and BLM roads – and demanding that all physical obstructions on those roads be removed – is under consideration by the county commissioners.
Bur their apparent initial enthusiasm for the measure seems to have been somewhat blunted by concerns over spending taxpayers’ money on what could be a costly – and possibly futile – legal battle with the federal government.
The commission, which had previously said it would make a decision on the resolution Aug. 5, instead delayed taking action, suggesting a public forum be held in September to shed further light on the issue.
The resolution is closely based on one passed in Apache County, Ariz., in 2011. It is being supported by Dennis Atwater, Bud Garner and other local citizens who have been urging the commissioners to force some sort of confrontation with the Forest Service over road closures.
The commissioners voiced sympathy with the sentiment behind the resolution, but indicated they didn’t want to rush into battle.
“I’m a little reticent to get myself committed as a commissioner to push this thing forward,” said Keenan Ertel on Aug. 5. “The expense involved might be overwhelming.”
John Baxter, the commissioners’ attorney, said he agreed with the basic assertions in the resolution but predicted that its passage and enforcement would likely result in an immediate legal reaction by the affected public-lands agencies.
“I think the federal government would quickly go for an injunction if we tried to enforce the resolution,” Baxter said.
The draft resolution, which Baxter had revised somewhat from the original version, states “that the County asserts inherent right to lay out, alter, or discontinue any public road, right-of-way, or route of travel” within Forest Service and BLM lands in the county, but not on Indian reservations.
It further states “that any existing physical obstruction, gate, or impediment” on public roads, rights of way, or routes of travel on Forest Service or BLM lands “be immediately removed” and that any roads that have been decommissioned “by non-county agencies” must be reopened within 60 days after the measure’s passage.
It says the Montezuma County sheriff may remove the gates at the agencies’ expense, and makes placing or maintaining any “unauthorized” physical obstruction or gate on public roads a Class I misdemeanor.
During a discussion on the proposal at the July 15 commission meeting, Sheriff Dennis Spruell expressed enthusiasm for the measure, saying his “biggest pain” since he has been in office “is not crime in Montezuma County, but the federal government coming in here and encroaching on our liberties.”
Supporters of the measure told the board it had resulted in a complete change in attitude on the part of the Forest Service in Apache County, and that forest officials there had given the sheriff his own set of their keys.
But, Spruell told the board, “I don’t need no stinking keys when it comes to opening gates. I’ve got a key opener.” Spruell has previously threatened to cut a lock off a gate on a road closed by the Forest Service.
“They’ve pushed us around long enough,” Spruell continued. “It’s time to make a decision. Either we do it or we don’t.”
But on Aug. 5, the board said it wasn’t yet time to make a decision. Ertel said Apache County is different from Montezuma County in several ways, including the fact that more than half of it, the Navajo Nation, is a sovereign government.
The board noted that Apache County’s road resolution was part of an effort spurred by concern over the disastrous Wallow Fire the summer of 2011 and was accompanied by another resolution aimed at timber-thinning on the Apache-Sitgreaves National Forest.
They also expressed deep concern over the costs that could accumulate if the resolution were passed.
“Playing the devil’s advocate, the money could put the county in financial trouble,” said Commissioner Larry Don Suckla.
Chappell noted that San Juan County, Utah, has spent well over $1 million trying to open a single road. When someone in the audience spoke about liberty and the founding fathers, Chappell noted, “The founding fathers sacrificed their own fortunes and lives.”
The board reiterated that point on Aug. 5, commenting that individuals or groups such as the Southwest Public Lands Coalition, a local user group, could sue the Forest Service over road access.
Ertel said, “I want to know who’s going to be involved with us in a lawsuit.”
Garner, a former county-commission candidate and former emcee of the 9-12 Project, said everything contained in the proposed resolution was already law “except the 60-day clause” and that tolerating the federal government’s behavior would be tantamount to “giving up all our liberties.”
Ertel suggested, “Let’s get some of your skin in the game.”
When Garner said he did have some skin in the game, indicating the commissioners, Ertel said, “I’m talking about money.”
Garner said private organizations and individuals don’t have the same standing in court as counties. “There’s case after case where the courts ruled that private organizations don’t have standing,” he said, but the board said environmental groups manage to do well in court.
Atwater, who is the main spokesman for those behind the resolution, told the Free Press he knows it sounds adversarial.
“It sounds like we’re looking to pick a fight, but we’re not. It just says, ‘This is the law and if you break the law there are consequences. Let’s sit down at the table and work it out’.”
He said he and other “have spent a lot of time researching the federal, state and county law, and have come to the same conclusion that Apache County did, that these are in fact under state jurisdiction, which the state passes to the county.”
The purpose of the resolution, Atwater said, is to uphold that interpretation of the law. “Does that mean there are no roads that should be closed? Heavens, no, but do it with legitimate scrutiny, not with umbrella policies. There needs to be a specific reason.”
Any roads proposed for closure on public lands need to undergo a process at the county level, he said. “If a road needs to be closed, bring it to a public hearing.”
He hopes passage of the resolution would “bring the agencies to the table to work with the county as they are mandated to do under federal law. That’s what happened in Apache County.”
The basis for the resolution is “health, safety, and welfare of the county,” because road access is needed for firefighting and rescues, and for economic development related to multiple use on public lands, he said.
Atwater said a couple of years ago, an angry citizen tore down a Forest Service gate at Narraguinnep Reservoir, and both Montezuma and Dolores counties ran ads asking people to stop such behavior and let the system work.
“But it hasn’t worked,” Atwater said. “This resolution is a good way to open the door to a good relationship with the agencies. I’m not saying some roads shouldn’t be closed, but the process must be followed.”
Atwater said numerous other counties across the West are interested in passing similar resolutions, and he would like to see neighboring Dolores County join in.
But Baxter has told the board he is not at all certain that Montezuma County would prevail in court if it passes such a resolution.
Baxter said he agrees the county has the authority over roads, but said the Forest Service has attorneys who don’t agree, and a drawn-out court battle might ensue. “When the U.S. government fights you, you might lose,” he said.
Additional consequences of its passage could include the county’s having to assume financial responsibility for maintaining the roads and providing law enforcement. “We want to make sure we want all these roads,” he said.
He also questioned the practicality of citing Forest Service officials for closing roads.
“When Dennis Spruell gives [Dolores District Manager] Derek Padilla a ticket, I think Derek Padilla will give Dennis Spruell a ticket,” Baxter said.
Baxter noted that Utah’s state legislature this year had passed a bill that said federalland agencies could not enforce state laws such as speed limits and hunting regulations, then repealed the measure after a U.S. District Judge issued a preliminary injunction that stopped the law from taking effect.
And after Otero County, N.M., passed a bill in 2011 to start managing national-forest lands within its boundaries, the Forest Service sued the county, saying the bill was unconstitutional. “They’re not doing so well in federal court right now,” Baxter said, adding that the federal government might be awarded attorney’s fees. “From that angle it doesn’t look like our prospects would be great.”
Ertel said he would like to invite Apache County’s natural-resource coordinator, Doyel Shamley, who reportedly initiated the resolution and says it is a great success, to come make a public presentation in Montezuma County, perhaps in September. “Let’s hear what’s they have done and how they’ve succeeded. Hopefully we will find our way clear to either adopt or deny a resolution,” Ertel said.
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