M. CHRISTINA ARMIJO, CHIEF UNITED STATES DISTRICT JUDGE.
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
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:
[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
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 Act (CWA)." [Doc. 71-1 at 8, ¶ 30].
In his declaration, Trujillo asserts that after Otero County passed the Resolution, Otero County commissioners announced the county's intention to cut trees on NFS lands and Otero County officials repeatedly asserted in meetings with Trujillo on May 24, and July 5, 2011, that Otero County did not need, and would not wait for, Forest Service approval to implement treatments on NFS lands. [Id. at 3, ¶¶ 6, 7]. Trujillo further declares that at a July 5, 2011 meeting, "Otero County Commissioner Chairman Ronnie Rardin, in the presence of the County Sheriff, threatened that the Sheriff [Benny House] would arrest Federal personnel if Federal personnel interfered with Otero County treatments on National Forest System lands." [Id. at 3-4, ¶ 10]. "On May 5, 2011, Patrol Captain Tim Bertrand informed [Trujillo] that [Bertrand] had been informed by Sheriff Benny House that Sheriff House did not recognize Forest Service authority or jurisdiction," and Trujillo asserts that "Sheriff House also reportedly has stated that [House] would arrest Forest Service law enforcement officers on kidnapping charges if those officers arrested anyone implementing Otero County's Project." [Id. at 13, ¶¶ 53-54].
Trujillo declares that on August 2, 2011, Forest Service officials met with Otero County officials who informed Forest Service representatives that "Otero County intended to move forward in developing a plan to cut and remove trees, logs, and undergrowth on National Forest System lands in Otero County and would not wait for" the Forest Service, [id. at 4, ¶ 11], to "fulfill the requirements of ... Federal laws and regulations," even though the Forest Service offered to expedite this process, [id. at 3-4, ¶¶ 8, 11]. Trujillo further attests that, "[o]n August 25, 2011, Regional Forester, Corbin Newman, met with Commissioner Rardin and other Otero
Trujillo declares that on September 8, 2011, Otero County held a meeting to inform the public about the Garett Plan and to garner public support for implementation of the plan, [id. at 7, ¶ 23], and Otero County "made clear to the Forest Service that Otero County would proceed with its `kick off" event without Forest Service approval," [id. at 6, ¶ 20]. Trujillo asserts that although the Forrest Service consented to the kick-off event, it did so only because its scope fell within a previously-approved project and because the Forest Service wished to avoid a potentially dangerous confrontation. [Id.]. On September 17, 2011, Otero County held its ceremonial "emergency tree cutting." [Doc. 71 at 7, ¶ 6]. During this event, Otero County gave speeches in which it further confirmed its intention to implement treatments on NFS lands. [Id. at 8, ¶ 7].
Trujillo explains that it was "Otero County's threats of implementing the Garrett Plan without Forest Service authorization [that] compelled [the Forest Service] to authorize th[e] `kick-off' event, despite [the Forest Service's] reservations with it, in order to avoid putting [federal] employees at risk from the County's actions and from confrontations with the County Sheriff." [Doc. 71-1 at 6, ¶ 20]. The Forest Service was thus forced "to diffuse a potentially tense and dangerous law enforcement situation by exploring potential locations and projects where all regulatory and policy requirements had been met." [Id.]. To this end, the Forest Service identified the Sleepy Grass Campground Site, which consisted of less than one acre of land, as a potential site for the kick-off event, because the Forest Service had previously marked trees to be cut at this site in compliance with federal law but had not implemented this part of the project. [Id. at 6, ¶ 21]. Trujillo asserts that although the implementation of the broader Otero County project outlined in the Garrett Plan would be inconsistent with and violate federal law, cutting trees on the one acre piece of land at the Sleepy Grass Campground Site would not violate federal law. [Id. at 6, ¶¶ 20, 21].
Trujillo attests that at an October 17, 2011, meeting, Rardin indicated that the county was "unwilling to wait for Forest Service approval of [its] proposed project." [Id. at 12, ¶¶ 49-50]. Then, on November 17, 2011, Trujillo asserts that "Otero County submitted a new proposal calling for treatment of 1,200 to 1,500 acres on the Lincoln National Forest" in an area "within Mexican Spotted Owl (MSO) habitat with MSO present in the area." [Id. at 12, ¶ 51]. Otero County expressed that this treatment needed to be completed by the Spring of 2012 and that Otero County would complete the treatment without regard to applicable environmental federal laws that protect NFS lands. [Id. at 12-13, ¶ 51].
This matter is before the Court on three motions: Pacific Legal Foundation's
Because the Court concludes that the United States has standing to bring its claims, the Court next decides PLF's Motion for Leave to File Brief Amicus Curiae. That motion requires the Court to resolve the threshold question of whether to allow PLF to file its amicus brief containing arguments that PLF maintains will assist the Court in addressing the summary judgment motions, and the Court thus must answer this question prior to reaching the merits of the motions for summary judgment. As discussed herein below, the Court denies PLF's motion on the grounds that its proposed amicus brief injects a new legal question into this litigation, does not present any argument related to the legal questions before the Court on summary judgment, and therefore is not of assistance to the Court.
The Court thereafter considers the substantive two-part dispute between the United States and Otero County raised by their cross-motions for summary judgment. The first aspect of this dispute requires the Court to examine the line between the powers delegated to the United States by the Property Clause of the Constitution and those police powers reserved to the states under the Tenth Amendment. The Court concludes that the Property Clause grants the federal government plenary power over federal lands, and consequently that the Tenth Amendment does not reserve an exclusive sovereign right to New Mexico to regulate federal lands in contravention of federal law. With respect to the second aspect of the dispute, the Court concludes that the New Mexico statute and Otero County Resolution conflict with federal law and therefore are invalid pursuant to the Supremacy Clause of the United States Constitution.
The Court last turns to the dispute on summary judgment between the United States and New Mexico, and determines whether, consistent with New Mexico's argument in opposition to the United States' Motion for Summary Judgment, the Court can construe the consultation requirement of the New Mexico statute in a manner that does not conflict with federal law and therefore that does not violate the Supremacy Clause. The Court concludes that New Mexico's proposed interpretation of the statute is not consistent with the statute's plain and unambiguous language or its legislative intent, and that New Mexico's argument therefore does not render the statute valid.
A plaintiff must satisfy three criteria to establish that it has standing within the meaning of Article III's "Cases" and "Controversies" requirement. See Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "First, the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest that is both (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Gandy, 416 F.3d at 1154 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). "Second, there must be a causal connection between that injury and the challenged action of the defendant
In the Court's Memorandum Opinion and Order dated September 23, 2013, [Doc. 49], the Court sua sponte raised the question of its power to hear this case. Although the United States moved pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, [Doc. 29], the Court held that it could not grant that motion because, as a threshold matter, the Court was obligated to ensure that the United States had standing to bring its claims. [Doc. 49 at 3]; see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1126 (10th Cir. 2013) (explaining that "whenever standing is unclear, [the court] must consider it sua sponte to ensure there is an Article III case or controversy before [it]") (citation omitted). In particular, the Court expressed concern whether the United States could establish the first element of standing — namely, that it had suffered a threatened injury in fact. [Doc. 49 at 3]. The Court explained that "Section 4-36-11 does not require the United States to take any action and it does not prohibit the United States from engaging in any activity on federal land now authorized by federal law. Section 4-36-11 does not prescribe criminal penalties enforceable against federal officers." [Id. at 4]. And, the Court reasoned that "for a resolution adopted pursuant to § 4-36-11 to actually interfere with the United States' management of federal forest lands, some human agents of a county must be willing to engage in unauthorized timber cutting and clearing on federal land." [Id. at 5]. Because a dispute of fact existed in the pleadings on the question whether any agents of the county were willing to engage in unauthorized timber cutting or clearing on federal land, however, the Court did not enter judgment on the pleadings in the United States' favor on the question of standing. [Id. at 5-6].
Under the Rule 12(b)(1) standard, which the Court applies to an issue of standing raised in a Rule 12(c) motion for judgment on the pleadings, the Court was authorized to consider evidence beyond the pleadings without converting the motion for judgment on the pleadings into a motion for summary judgment. At the time, however, the parties had not provided the Court with the necessary facts for the Court to determine whether the record affirmatively supported the United States' standing. See Swepi, LP v. Mora County, 81 F.Supp.3d 1075, 1130 (D.N.M.2015) ("standing ... must affirmatively appear in the record") (internal quotation marks and citation omitted). Thus, the Court deferred ruling on the merits of the constitutionality of the statute and ordinance thereby allowing the parties to present the Court with the necessary facts to establish standing. [Doc. 49 at 6]. The parties chose to bring the required facts before the Court in their cross-motions for summary judgment. The Court now determines whether the United States has suffered a threatened injury in fact sufficient to provide it with standing to sue.
In deciding the question of standing at the summary judgment stage, the Court does not apply the Rule 12(b)(1) standard applicable at the pleading stage, but rather determines whether the United States has set forth by affidavit or other evidence specific facts that, if taken as true, establish each of the required elements of standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citing Fed. R. Civ. P.
To determine whether the United States has presented evidence which, if true, satisfies the first element of standing, the Court must address at the outset Defendants' objections to the evidence upon which the United States relies to establish standing. Defendants first maintain that the Court should discount Trujillo's declaration because it is outdated. [Doc. 78 at 5-6]. The Court is not persuaded. Standing is assessed as of the time the United States filed suit, which was on February 7, 2012. The statements in Trujillo's declaration are relevant to whether the United States suffered a threatened injury in fact at the time it filed suit. Trujillo's declaration contains facts identifying statements of county officials that were made between May 2011 and the end of November 2011. These statements transpired after the county passed its Resolution in May 2011 through the date the United States filed this suit, and they fall within the precise timeframe that is relevant to the standing inquiry. The Court therefore rejects Defendants' contentions that the United States' evidence is outdated and should be discounted.
Defendants next argue that the Trujillo declaration is vague because Trujillo at times fails specifically to identify the names of the county representatives making statements to him but rather only generally refers to the declarants as "County officials." [Id. at 5 (citing Doc. 71-1 at ¶ 70); Doc. 77 at 5]. The Court is not persuaded that the failure to identify specific county officials by name impacts the admissibility of the statements. Rather, the Court concludes that the statements contain other sufficient indicia of reliability to render them admissible.
Defendants last challenge Trujillo's assertions in paragraphs 13 and 54 on the ground that Trujillo "references out-of-court statements" and "second- and third-hand comments or discussions." [Doc. 77 at 5]. Defendants argue, therefore, that the statements constitute inadmissible hearsay.
Specifically, with respect to paragraph thirteen, Defendants contend that Trujillo's assertion that "[o]n August 25, 2011, Regional Forester, Corbin Newman, met with Commissioner Rardin and other Otero County officials" and following that meeting, "[Newman] relayed to [Trujillo] that it was Otero County's stated intention to develop and implement a plan to treat National Forest System lands in Otero County," [Doc. 71-1 at 4, ¶ 13], is hearsay. The United States correctly notes that statements made by county officials are
With respect to paragraph 54, in which Trujillo asserts that "Patrol Captain Tim Bertrand informed me that he had been informed by Sheriff Benny House that Sheriff House ... would arrest Forest Service law enforcement officers on kidnapping charges if those officers arrested anyone implementing Otero County's Project," [Doc. 71-1 at 13, ¶ 54], the Court holds that because Bertram and House are party-opponents, their statements do not constitute hearsay. See Fed. R. Evid. 801(d)(2). The Court also holds that the statements do not constitute hearsay to the extent that they are offered not to prove the truth of the matter asserted — i.e., that House would, in fact, arrest federal officials — but rather for some other purpose — e.g., the effect of the statements on those hearing it. Defendant's objections are overruled.
The Court next determines whether the United States has satisfied its Article III
Defendants Otero County and the State of New Mexico argue that the United States has not identified facts sufficient to establish that the threatened injury — i.e., Otero County's unauthorized implementation of the Garrett Plan or any other unauthorized treatments on NFS lands — was "certainly impending" on February 7, 2012, which is the date on which the United States filed suit and which, therefore, is the date on which the Court assesses standing. See Gandy, 416 F.3d at 1154 (explaining that standing is determined as of the time the action is brought). The County contends that its declarant Rardin confirmed that the county would implement the Garrett Plan without the Forest Service's consent only if consultation with the Forest Service fails, and the county argues that because "at this time, no official has entered onto forest land and taken any action in furtherance of Section 4-36-11 without necessary authority and approvals," the United States cannot establish that the threatened injury of unauthorized treatment of federal lands was certainly impending. [Doc. 77 at 2]. New Mexico similarly argues that the United States has failed to establish certainly impending injury because the evidence indicates that only if cooperative solutions fail and the Forest Service withholds its consent, will Otero County take action without the Forest Service's consent. [Doc. 72 at 2]. The State of New Mexico further contends that the United States cannot establish threatened injury in fact because the particular actions Otero County will take are "unknown and unspecified." [Id.].
The Court rejects Defendants' arguments and instead holds that the United States has presented evidence which, if true, establishes that threatened injury was certainly impending at the time it filed suit. It is not determinative, as the County and New Mexico assert, that no county official has as of yet entered NFS lands without consent, for the United States correctly asserts that it need not "wait for the County to actually trespass and cause the United States irreparable injury by cutting trees without authority from the Forest Service." [Doc. 92 at 9]. The relevant question is whether, on the United States' facts, the threatened injury is "certainly impending." The United States has pointed to evidence that satisfies this standard.
The evidence relevant to the Court's standing inquiry establishes that between the time when the county passed the Resolution in May 2011, and the date of filing of this suit, Otero County repeatedly indicated that it will implement the Garrett Plan without regard for whether it obtains the Forest Service's consent. Specifically, county officials announced the County's intention to cut trees on NFS lands and repeatedly asserted in May and July 2011
The evidence also establishes that, although the Forrest Service was able to consent to the kick-off event because its scope impacted only one acre of NFS lands and fell within a previously-approved project, [id. at 6, ¶ 20], the Forest Service cannot and will not approve the broader Garrett Plan because it impacts 69,000 acres of federal land and is inconsistent with and violates federal law. "Implementation 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 Act (CWA)." [Id. at 8, ¶ 30]. In addition, because the Garrett Plan is aimed only at reducing the risk of wildfire, it interferes with the multi-faceted goals of the Forest Service's plans which seek to preserve the national forests for their many uses. [Id. at 9, ¶¶ 33, 34].
The evidence demonstrates that for seven unwavering months the County repeatedly and publicly confirmed its unequivocal intention to implement the Garrett Plan without regard for whether the Forest Service consented to the plan. That the County held a meeting on September 8, 2011, to inform the public about the Garrett Plan and to garner support for that plan, and that county representatives gave speeches at the kick-off event on September 17, 2011, in which the County confirmed publically its intent to implement the Garrett Plan, serves as further evidence that the county intended to treat federal lands even if without consent.
It is not only the evidence that the county will cut trees on NFS lands without federal approval which establishes that the threatened harm was certainly impending on the date the United States filed suit but also the evidence that the county did, in fact, begin implementing the Garrett Plan on September 17, 2011, at its kick-off event. Of particular import is that the undisputed evidence, which the Court must assume is true, see id. establishes that the county would have held this kick-off event even if the Forest Service had withheld its approval. [Doc. 71-1 at 6, ¶ 20]. On September 2, 2011, the county announced its intention to the Forest Service to hold the event to mark the "start" of the implementation of the county's treatments and indicated that it would do so without the Forest Service's consent, [id.] and, on September 17, 2011, only fifteen days thereafter, the county did in fact hold the event to mark the start of its treatments, [Doc. 71 at 7, ¶ 6]. This evidence is concrete and particularized and establishes that the county was willing to act, and to act in short order, to treat federal land without the Forest Service's consent.
The Court is not persuaded by Defendants' arguments to the contrary. Defendants claim, for example, throughout their summary judgment briefing, that no injury in fact has occurred because Otero County is prepared to "consult" with the Forest Service prior to cutting any trees on federal lands without authorization. This commitment to consultation, Defendants maintain, renders the threatened injury uncertain and therefore negates injury in fact. [Doc. 72 at 2 (arguing that "Otero County `will continue to consult with [the United States Regional Forester] and attempt to find cooperative solutions,'" that only if such cooperation fails will Otero County "`take physical action with or without the consent of the Forest Service,'" and that "[c]ritically, Otero County's plans to take action on federal land are contingent upon the failure of future negotiations with the Forrest Service") (quoting Doc. 64-1 at 2, ¶ 6)].
Defendants' argument is disingenuous. Although the Forest Service may have found a lawful way in which to approve the kick-off event on one acre of Forest Service land, the evidence before the Court on summary judgment establishes that the Forest Service will not be able to approve the broader implementation of the Garrett Plan on 69,000 acres of federal land. [Doc. 71-1 at 6, ¶ 20]. Thus, on the evidence before the Court, injury in fact is inevitable, for, when the United States withholds its consent, no amount of consultation between Otero County and the Forest Service will prevent the United States
At bottom, the county's offer of consultation with the Forest Service is pro forma, for the County has acknowledged that if the Forest Service withholds its consent the County will nonetheless act. Thus, Defendants in essence argue that the United States lacks standing to challenge the threat of Otero County's unauthorized treatment of federal lands because no unauthorized treatment of federal lands will occur if the Forest Service simply approves the county's plans. Or, stated starkly, the United States will not be injured if the Forest Service surrenders its authority and abdicates its duty to protect federal lands and to comply with federal law and instead does exactly what the County wants. For obvious reasons, the Court declines to so hold.
The Court likewise is not persuaded by Defendants' argument that the harm is not imminent because, as of yet, the county has taken no unauthorized action on federal land and that the kick-off event was conducted with the Forest Service's consent. That the County conducted the kick-off event with the Forest Service's approval does not alter the fact that the County would have held the event without the Forest Service's consent. While the County attempts to draw attention away from this latter fact by emphasizing the former and by describing the process leading up to the kick-off as "collaborative," [Doc. 78 at 8 (characterizing the kick-off event as "the sort of collaborative exercise that both federal law and Section 4-36-11 contemplate" and arguing that this type of "collaborative" event "cannot support standing")], the Forest Service's consent and the asserted "collaborative" process is of little import because the evidence establishes that the consent and process were undertaken under pressure. [Doc. 71-1 at 6, ¶ 20].
It was Otero County's threats of implementing the Garrett Plan without Forest Service authorization that "compelled" the Forest Service to authorize the kick-off event because the Forest Service did not want to "put[ federal] employees at risk from the county's actions and from confrontations with the County Sheriff." [Id.]. The Forest Service was forced "to diffuse a potentially tense and dangerous law enforcement situation by exploring potential locations and projects where all regulatory and policy requirements had been met." [Id.]. To this end, the Forest Service identified the Sleepy Grass Campground Site, which consisted of less than one acre of
The Court declines to hold that the Forest Service's acquiescence for the kick-off event immunizes the County from a finding of imminence. That the Forest Service knew the County would have held the event even if the Forest Service withheld its approval placed the Forest Service in the untenable position of choosing between, on the one hand, a potentially dangerous confrontation in the field that would compromise federal employees and others by, among other things, placing them at risk of arrest, and, on the other hand, the authorization of a small event on one acre of land (in contrast to the 69,000 acres of land proposed for treatment in the Garrett Plan that could not be executed in compliance with federal law) that already had been approved and would be executed in compliance with federal law. That the Forest Service chose the latter option, under these facts, does not negate imminence or alter the fact that the County was prepared to hold a public event on federal land without the required federal approval. It is the evidence that the County would have acted without federal approval that is determinative, and not that the Forest Service obviated the County's need to act without approval by providing its consent. To hold otherwise would penalize the United States for its decision to seek controlled redress through the courts instead of unpredictable and potentially dangerous confrontation in the field. The Court declines to inflict such a penalty.
For the foregoing reasons, the Court concludes that the United States has satisfied its burden of establishing that that it suffered a threatened injury in fact as of the date on which it filed suit. Because it is only the first element of standing that was in question, the Court concludes that the United States has standing to pursue its claims.
Defendant Otero County suggests that the United States' claims may not be ripe for a judicial challenge, [Doc. 77 at 5], as required by Article III. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995).
Generally, a district court applies "a two-factor test to determine whether an issue is ripe," evaluating "`the fitness of the issue for judicial resolution and the hardship to the parties of withholding judicial consideration." Kan. Judicial Review v. Stout, 519 F.3d 1107, 1116 (10th Cir. 2008) (quoting Sierra Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990)) (citation
"`Historically, amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the Court in order that justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another.'" WildEarth Guardians v. Lane, No. 12-CV-0118 LFG/KBM, 2012 WL 10028647, *2 (D.N.M. June 20, 2012) (quoting Community Ass'n for Restoration of Environment v. DeRuyter Bros. Dairy, 54 F.Supp.2d 974, 975 (E.D. Wash. 1999)). "There is no precedent directly on point in the Tenth Circuit Court of Appeals[] ... in deciding whether to allow or deny amicus participation. Nor is there a pertinent rule of civil procedure" governing amicus participation in federal district courts. Id. (citation omitted). Although no Federal Rule of Civil Procedure governs amicus participation in a district court case, district courts commonly look for guidance to Federal Rule of Appellate Procedure 29, which governs amicus curiae briefs in the United States Circuit Courts of Appeal.
The Court concludes that PLF has not presented information in its brief that will be of assistance to the Court because its proposed brief injects a new issue into this case not raised by the parties and because it contains no arguments that are relevant to the disposition of the claims before the Court on summary judgment. In its complaint, it asserts two counts. [Doc. 1]. In the first count, the United States seeks a declaration 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]. In the second count, it 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]. In their Answers, neither defendant raises any counterclaims against the United States or the Forest Service.
PLF's brief does not address either of the two claims pending before this Court. Rather, while recognizing in the only paragraph comprising the introduction to its proposed brief that the primary issue in the case is "[w]hether the County may directly abate public nuisance conditions... in the Lincoln National Forest under the authority of a local ordinance adopted pursuant to a New Mexico Statute," PFL asserts in the very next sentence that "[t]his amicus curiae brief addresses the legal question of whether Otero County can hold a federal agency, such as the USDA Forest Service, liable for maintaining a public nuisance in the first instance. The answer to that question is yes." [Doc. 86 at 1]. PLF thereafter asserts in the third and last sentence of its introductory paragraph that it "urges the Court to rule to that effect, and that such public nuisances are subject to abatement, regardless of its ruling on whether a local ordinance is a legally permissible means of abating a public nuisance maintained by a federal agency." [Id. (emphasis added)]. Thus, in the introductory paragraph of its proposed brief, PLF admits that it does not address the issue it acknowledges is before the Court in this case — namely, whether the United States is entitled to a declaration that the New Mexico statute and Otero County Resolution are unconstitutional — but rather that it seeks to determine "in the first instance" whether Otero County can hold the United States Forest Service liable for maintaining a public nuisance. [Id.]. That PLF asks the Court to address this latter question "regardless" of its ruling on the issues actually before the court, [id.] confirms that the question addressed in PLF's proposed brief is separate and distinct from the question at issue in this litigation and can be decided wholly independent, or "regardless," of this Court's decision on the United States' claims.
A review of the remainder of PLF's proposed brief confirms that the brief contains new arguments on a new claim that are not relevant to the claims or arguments
Thus, the entirety of PLF's proposed amicus brief addresses a topic not presently before this Court. While "Otero County has variously argued that its actions do not offend the Property Clause and the Supremacy Clause because the County can exercise its `police power' under the Tenth Amendment to itself abate an alleged nuisance on the Lincoln National Forest pursuant to the authority of the New Mexico Statute and County Resolution," [Doc. 94 at 8 (citing Doc. 64 at 6-15)], "neither Otero County nor the State has raised a counterclaim requesting — as Pacific Legal Foundation does in its proposed amicus brief — the Court to order the Forest Service to abate the alleged nuisance," [id.].
The Court therefore denies PLF's Motion for Leave to File Brief Amicus Curiae because PLF's proposed brief injects a new legal question into this case and does not contain arguments that relate to any pending claims in this case. Regarding the first point, "[A]n amicus curiae is not a party and has no control over the litigation and no right to institute any proceedings in it[;] nor can it file any pleadings or motions in the case." NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.Supp.2d 1061, 1068 (N.D. Cal. 2005) (citation omitted), rev'd in part on other grounds by Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767 (9th Cir. 2008). Moreover, "`[t]he named parties should always remain in control, with the amicus merely responding to the issues presented by the parties.'" Alkaabi, 223 F.Supp.2d at 593 n.19 (quoting Waste Mgmt., Inc. v. City of York, 162 F.R.D. 34, 36 (M.D. Pa. 1995)). "`An amicus cannot initiate, create, extend, or enlarge issues.'" Id. (quoting Waste Mgmt., 162 F.R.D. at 36). Consistent with this limited role, an amicus may not introduce an issue into a case or seek relief that is not raised or requested by the parties. See, e.g., Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1145 n.2 (10th Cir. 2000) (striking arguments in amicus brief "that have never been advanced by the parties"); Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97 n.4, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991) ("[W]e do not ordinarily address issues raised only by amici.") (citation omitted).
Regarding the second point, Appellate Rule 29 provides that a motion seeking leave to participate as amicus must, among other requirements, state why the matters asserted are relevant to the disposition of the case. See Fed. R. App. P. 29(b)(1), (2). The comments to Appellate Rule 29(b) note that "the relevance
PLF both injects a new issue into this case and fails to articulate why the arguments asserted in its proposed brief are relevant to the disposition of this case. As previously discussed, this Court's review of PLF's proposed brief reveals that it addresses only a new claim and that it contains no argument relevant to the disposition of this case. The Court denies PLF's Motion for Leave to File Brief Amicus Curiae.
Having held that the United States has standing to bring its claims and that the claims are ripe for adjudication, the Court now addresses the merits of the arguments raised in support of the United States' and Otero County's cross-motions for summary judgment. A movant is entitled to summary judgment if the documents in the record do not establish a genuine dispute of material fact and "the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (a), (c). The parties agree that there are no facts in dispute regarding the merits of the motions and that the questions before the Court on summary judgment are purely legal. [Doc. 64 at 4; Doc. 71 at 4; Doc. 78 at 2 n.1]. Thus, the legal questions governing the dispute between them are appropriate for summary adjudication.
The United States seeks summary judgment on its claim against Otero County, asking the Court to declare that the county Resolution in conflict with federal law, that the Resolution violates the Supremacy Clause, and that the Resolution therefore is unconstitutional and must be invalidated. [Doc. 1 ¶ 61]. Otero County cross-moves for summary judgment on the United States' claim, arguing that the Court should declare the New Mexico statute and the Otero County Resolution constitutional because they merely delegate to the State of New Mexico and the counties the inherent police powers over federal lands that the Constitution already reserves to the states under the Tenth Amendment and therefore that, because the statute and Resolution are exercises of valid state police power over federal land, federal law does not supersede the state law or county Resolution. [Doc. 64 at 5, 7-8]. In the alternative, Otero County contends that, even if
The Court first determines whether the Property Clause to the United States Constitution grants plenary power over federal lands to Congress or whether the Tenth Amendment reserves to the states a power to "abate a disaster/threat/nuisance to the health, safety and welfare of [their] citizens," [id. at 5], on federal lands within their borders. Because the Court concludes that the Property Clause grants Congress plenary power over federal lands and that the Tenth Amendment therefore necessarily does not reserve the power to abate a nuisance or threat on federal lands to New Mexico or the other states, the Court next determines whether Section 4-36-11 of the New Mexico statute and the Otero County Resolution represent a constitutional exercise of the state's and county's concurrent jurisdiction over federal land, or whether, the statute and Resolution conflict with federal law in violation of the Supremacy Clause and must be invalidated.
The United States' Motion for Summary Judgment, which in part seeks a declaration from this Court that the New Mexico statute and Otero County Resolution are in conflict with, and therefore superseded by, federal law pursuant to the Supremacy Clause of the Constitution, necessarily assumes that the Property Clause of the Constitution grants Congress plenary power over federal lands and that the Tenth Amendment, therefore, does not reserve for the states any exclusive police power to abate a nuisance or threat on federal lands. In contrast, Otero County argues, in support of its motion for summary judgment, that the New Mexico statute and Otero County Resolution are constitutional because the Tenth Amendment reserves for the state and county certain inherent police powers to abate a nuisance or threat on federal lands and to protect the health, safety, and welfare of New Mexico citizens on federal lands and because the Property Clause does not grant Congress the power to regulate federal lands when the regulation impedes New Mexico's sovereign police powers to protect its citizens on federal lands. [Id. at 7-8]. In Otero County's view, by enforcing the federal statutes and regulations upon which the Forest Service relies, the Forest Service "is attempting to anticipatorily interfere with the lawful exercise of New Mexico's police powers" and "is thereby depriving the State of its structural autonomy." [Id. at 9]. Otero County concludes that the United States "has successfully located an outer boundary of the rights bestowed upon [it] by the Property Clause by filing this anticipatory action, and is now attempting to exceed that authority in violation of the State of New Mexico's police power reserved to it by the Tenth Amendment which has been properly delegated to the counties." [Id. at 15].
To resolve this dispute of law between the United States and Otero County, the Court must examine the line between the powers delegated to the United States by the Constitution and those reserved to the states. "The Constitution created a Federal
Our Tenth Circuit's decision in Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002), is controlling. In Wyoming, the state brought suit against the federal government, challenging the refusal of United States Fish and Wildlife Service ("FWS") to permit the state to vaccinate elk on the National Elk Range ("NER") with a vaccine for brucellosis, which is a serious disease that causes miscarriage, is endemic to free-ranging elk in the greater Yellowstone area, and is a threat to Wyoming's domestic cattle industry. Id. at 1218. The suit generally alleged the FWS's refusal to permit the state to vaccinate constituted unlawful interference with the state's "sovereign right" to manage wildlife within its borders, including its right to vaccinate elk on the NER. Id. at 1222. Specifically, the state alleged in a count labeled "Tenth Amendment Infringement," that the Tenth Amendment reserved for it the it "`inherent sovereign authority [within its borders] to manage, control, and regulate diseases in wildlife and domestic animals for the health, safety and protection of its citizens, its domesticated livestock and its free roaming wildlife.'" Id. at 1223 (quoting the state's complaint). The district court dismissed this count on the merits, holding that that "the State of Wyoming `does not have the sovereign power to manage wildlife on Federal lands,'" reasoning that "managing wildlife on federal land was not a power reserved to the States under the Tenth Amendment," and explaining that "the Federal Government took that power under the auspices of the Constitution's Property Clause." Id. at 1223 (quoting Wyoming v. U.S., 61 F.Supp.2d 1209, 1216-17 (D. Wyo. 1999)). On appeal, "[t]he State assert[ed] a concurrent, if not exclusive, right to manage wildlife on the NER, including a right to vaccinate elk on the NER ... , free from federal interference," and "[t]he FWS counter[ed] by asserting exclusive unlimited discretion under the NWRSIA to manage wildlife on the NER in any manner the Secretary deems appropriate, free from state interference." Id. at 1224.
The Tenth Circuit rejected Wyoming's argument that the Tenth Amendment reserved for the state the power to manage wildlife and vaccinate elk on federally-owned lands. See id. at 1227. The Wyoming court explained that while "[h]istorically, States have possessed `broad trustee and police powers over the ... wildlife within their borders, including ... wildlife found on Federal lands within a State,'" id. at 1226 (quoting 43 C.F.R. § 24.3) (additional citation omitted), "those powers are not constitutionally-based," id. To the contrary, the Tenth Circuit held that "[t]he Property Clause of the United States Constitution delegates to Congress (thus the Tenth Amendment does not reserve to the States) `the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.'" Id. at 1226 (quoting U.S. Const. art. IV, § 3, cl. 2) (emphasis added). The Wyoming court further explained that "Congress' power [to regulate the United States' lands] is `plenary,'" id. at 1227, and therefore that,
Wyoming compels the Court to reject Otero County's contentions that the Tenth Amendment reserves for New Mexico the powers to abate a nuisance or threat on federal lands. The State of Wyoming advanced the same argument that Otero County raises before this Court: That the Tenth Amendment reserves for the states inherent sovereign authority to regulate land owned by the federal government, but within state borders, for the protection of the health, safety, and welfare of the states' citizens. The Tenth Circuit flatly rejected this argument, labeling it "painfully apparent" that the Tenth Amendment does not reserve for the states any sovereign police power to regulate federal lands, or, stating this proposition in its mirror image, that the Property Clause clearly delegates this power to the federal government and therefore withholds it from the states. See id. The Wyoming court's conclusion and its reasoning apply equally here.
Consistent with the Supreme Court's holdings and our Tenth Circuit's decision in Wyoming, the Court rejects Otero County's contention that the Tenth Amendment reserves for it a sovereign right to abate a nuisance or threat on federal lands or to regulate and legislate for the protection of the health, safety, and welfare of New Mexico citizens on federal lands within New Mexico's borders. The Court necessarily also rejects Otero County's contention that the United States has exceed the scope of its power under the Property Clause.
Having held that the Constitution grants Congress a complete and plenary power (and therefore does not reserve for the states a Tenth Amendment, constitutionally-based power) over federal lands, the Court next determines whether, as Otero County contends, the New Mexico statute and county Resolution constitute permissible exercises of state and local concurrent jurisdiction over NFS lands, or whether, as the United States argues, the state and local laws conflict with federal law in violation of the Supremacy Clause. It is well settled that states have concurrent jurisdiction over federal lands for many purposes.
Thus, a state's right to exercise concurrent jurisdiction over federal lands is not derived from the Constitution or the Tenth Amendment, but rather is defined by Congress. See Wyoming, 279 F.3d at 1226, 1227 (explaining that permission to exercise concurrent power over federal lands "must come, if at all, not from the Constitution but from Congress"); Advanced Career Techs., Inc. v. John Does 1-10, 100 F.Supp.3d 1105, 1108 (D. Colo. 2015) ("preemption is fundamentally a question of congressional intent") (citing English v. Gen. Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). Congress may choose, in enacting statutes pursuant to its Property Clause power, to allow states to share concurrent jurisdiction with the United States on federal lands within their borders. See Wyoming, 279 F.3d at 1227 (explaining that, although the Tenth Amendment did not reserve the power of the states to regulate federal lands, the state nonetheless may be entitled to vaccinate elk on federal lands if Congress intended to grant the state that power). Stated differently, the question of the validity of a state's law enacted pursuant to its concurrent jurisdiction is not a substantive constitutional question answered by examining the affirmative provisions of the Constitution but rather is a statutory question determined by examining whether the state law conflicts with the federal congressional law at issue, such that the Supremacy Clause requires the state law to recede. See City of Hugo v. Nichols, 656 F.3d 1251, 1256 (10th Cir. 2011) (explaining that the Supremacy Clause is "not a source of any federal rights" but rather operates to "secure federal rights by according them priority whenever they come in conflict with state law," and that "a plaintiff alleging a Supremacy Clause claim is actually alleging a right under some other federal law, which trumps a contrary state law by operation of the Supremacy Clause") (internal quotations and citation omitted), cert denied, ___ U.S. ___, 132 S.Ct. 1744, 182 L.Ed.2d 557 (2012); see also U.S. Const., art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
Thus, to determine whether a state or local exercise of police power is valid, or, in contrast, violates the Supremacy Clause, the Court must examine the federal law at issue and determine whether Congress intended to preempt state and local concurrent jurisdiction over federal lands. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) ("It is, finally, axiomatic that `for the purposes of the Supremacy Clause, the constitutionality of local ordinances
"Congress' intent may be `explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)). Thus, while Congress may enact a statute that contains an express preemption provision, see Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 131 S.Ct. 1968, 1977, 179 L.Ed.2d 1031 (2011), preemption need not be express. State law also "is preempted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field `as to make reasonable the inference that Congress left no room for the States to supplement it.'" Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)) (additional citation omitted). The former type of preemption is referred to as "conflict preemption" while the latter is "field preemption." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Regarding the former, state laws are preempted when they conflict with federal law, which "includes cases where `compliance with both federal and state regulations is a physical impossibility,'" Arizona v. U.S., ___ U.S. ___, 132 S.Ct. 2492, 2501, 183 L.Ed.2d 351 (2012) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)), "and those instances where the challenged state law `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,'" id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). Regarding the latter, "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance." Id. (citation omitted). "The intent to displace state law altogether can be inferred from a framework of regulation `so pervasive... that Congress left no room for the States to supplement it' or where there is a `federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" Id. (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146) (additional citation omitted).
The Court gleans no clear and manifest purpose of Congress to supersede in full the states' police powers on federally-owned lands or to prohibit all state regulation of federal lands. See Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. Even if, however, Congress has not preempted New Mexico's police power across the field, it is clear that New Mexico's jurisdiction on NFS lands does not extend to matters inconsistent with federal law. See Kleppe, 426 U.S. at 543, 96 S.Ct. 2285 (explaining that while a state "undoubtedly retains jurisdiction over federal lands within its
The United States contends that the New Mexico statute and Otero County Resolution directly conflict with regulations that the USDA promulgated pursuant to its mandate from Congress to protect the forests from fire and to regulate their occupancy and use. The regulations upon which the United States relies to advance this Supremacy Clause argument
The United States contends that the New Mexico statute and Otero County Resolution violate, and therefore directly conflict with, these federal regulations. The Court first examines whether the statute and Resolution violate the federal regulations and, because it answers this question in the affirmative, next considers whether the violations give rise to a direct conflict with federal law rendering the state statute and county Resolution preempted and invalid under the Supremacy Clause of the United States' Constitution.
Section 4-36-11(C) of the New Mexico statute authorizes the board of county commissioners of a county in which a disaster has been declared, after "consulting with the state forester and the regional United States forester," among other things, 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," N.M. Stat. Ann. § 4-36-11(C), and the statute does not require the county to obtain Forest Service authorization prior to taking the action or otherwise to ensure that the action is authorized by federal law. To the contrary, Section 4-36-11(A) provides that the United States has "forfeit[ed]" its "jurisdictional supremacy" over NFS lands and that, because of this forfeiture, "a jurisdictional vacuum" has been created 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)(3)-(4). The Otero County Resolution similarly provides that Otero County "formally notifies State and Federal officials that pursuant to NMSA 1978 § 4-36-11C, it is empowered to ... 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," [Doc. 1-2 at 2], and the Resolution does not require the county to obtain Forest Service authorization prior to taking the actions authorized by the Resolution or to otherwise ensure that the actions are consistent with federal law. The only relevant pre-condition contemplated by either the Resolution or New Mexico statute prior to authorizing or "empower[ing]" a county to act is "consulting with ... the Regional United States Forester." [Id.]; see also N.M. Stat. Ann. § 4-36-11(C). Thus, Section 4-36-11(C) of the New Mexico statute authorizes the board of county commissioners of a New Mexico county, and the Otero County Resolution empowers Otero County, to cut and remove trees from NFS lands without Forest Service authorization, whereas, in contrast, federal regulations expressly prohibit such unauthorized actions on NFS lands.
More specifically, the state and county actions of "clear[ing] and thin[ning] undergrowth" and "remov[ing] or log[ging] fire-damaged trees," which are authorized by the state regime, N.M. Stat. Ann. § 4-36-11(C); [Doc. 1-2 at 2], if undertaken by the county, directly violate Section 261.6(a) of the federal regulations, which prohibits "[c]utting or otherwise damaging any timber, tree, or other forest product, except as authorized by a special-use authorization, timber sale contract, or Federal law or regulation," 36 C.F.R. § 261.6(a). This is because both the statute and Resolution
Otero County's arguments to the contrary are not compelling. The Court is not persuaded by Otero County's contention that the state and federal regimes are in harmony because the actions contemplated by the state laws fall within the federal regulatory exception for actions "authorized by Federal law." 36 C.F.R. §§ 261.6(a), (h); see also id. §§ 261.10(c), (k). Otero County reasons that, for example, "36 C.F.R. § 261.6(a) ... only prohibits cutting or otherwise damaging any timber, tree, or other forest product in the absence of a `special-use authorization, timber sale contract, or Federal law or regulation,'" and that "Section 261.6(h) reads similarly." [Doc. 77 at 14 (citing 36 C.F.R. § 261.6(a)) (internal quotations omitted)]. The county then posits that its actions fall within the exception for actions authorized by federal law "[s]ince the police powers of the Tenth Amendment are applicable Federal law." [Id.]. The county asserts that, "[c]ontrary to the United States' assertions ..., actual authorization of the Forest Service to perform acts provided for at 36 [C.F.R. §] 261.6(a) is not required, if federal law authorizes the activity," and that "[t]here is consequently no conflict." [Id.].
The flaw in this reasoning is that Otero County assumes, incorrectly, that New Mexico's police powers "are of the Tenth Amendment" and that they therefore constitute "applicable Federal law" within the meaning of the federal regulatory exception. [Id.]. The text of the Tenth Amendment confirms that state police power is not, as the county maintains, derived from
Moreover, even if the federal regulatory exception for actions authorized by "Federal law" could be construed to include all pre-existing state powers reserved to the states under the Tenth Amendment, Otero County's argument fails because the Court previously held that Otero County does not possess a Tenth Amendment constitutionally-based right to regulate NFS lands within its borders. This holding necessarily requires the Court to reject Otero County's argument that the New Mexico statute and Otero County Resolution regulating NFS lands is a police power "of the Tenth Amendment" and therefore falls within the federal regulatory exception for actions authorized by federal law.
Equally unconvincing is Otero County's argument that the New Mexico statute and County Resolution do not violate federal law because they were enacted for a different purpose than the purpose of the federal laws. Otero County emphasizes that the federal regulations are aimed at "land management" while the state and county laws regulate for the welfare of New Mexico's citizens. [Doc. 64 at 12 (maintaining that "[i]n the instant case, the [Forest Service] filed the cause of action upon the premise that state law concerning abating a nuisance/disaster ... w[as] preempted by land management regulation and law," but that "[t]his is not an accurate statement," because the "anticipated allegedly [violative] action by Otero County is not one of land management but of ensuring the health[,] safety and welfare of its citizens")]. The Court is not persuaded. The distinction Otero County highlights is not supported by the substance of the laws themselves. Otero County concedes that the state laws in part involve "land management." [Id. at 12-13 (conceding that "[t]o be sure" "the allegedly [violative] action
Further, Otero County cites no authority supporting its contention that state laws authorizing conduct that violates federal laws are not subject to preemption if the state laws were enacted for a general purpose distinct from that of the federal law. The Supreme Court specifically has held that, if state law conflicts with federal law, state law must recede, and that the purpose of the laws, whether parallel or divergent, is not relevant to the preemption inquiry. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) (rejecting the contention that "coexistence of federal and state regulatory legislation should depend upon whether the purposes of the two laws are parallel or divergent," explaining that the Supreme Court "has, on the one hand, sustained state statutes having objectives virtually identical to those of federal regulations" and "has, on the other hand, struck down state statutes where the respective purposes were quite dissimilar," and holding that "[t]he test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives") (citations omitted).
Having concluded that the New Mexico statute and Otero County Resolution authorize actions that, if undertaken by the county, violate multiple federal regulations, the Court next determines whether these violations render the state statute and county Resolution in conflict with federal law, such that the state laws must recede. The Court concludes that, for the reasons stated below, Otero County's proposed actions of cutting and removing trees from NFS lands without Forest Service authorization are in direct conflict with federal regulations prohibiting these unauthorized actions on NFS lands.
State laws are in direct conflict with federal law either when compliance with both federal and state laws is a "physical impossibility," Arizona v. U.S., ___ U.S. ___, 132 S.Ct. 2492, 2501, 183
If Otero County satisfies the prescribed state and local precondition of simply "consulting" with the federal forester prior to taking any action on NFS lands, then the statute and Resolution authorize and empower Otero County to clear, thin, remove, or log trees on NFS lands without requiring the county first to comply with the aforementioned federal regulations by ensuring that its actions fall are authorized by a special use authorization, permit, timer sales contract, federal law or regulation, and/or federal consent. See id. §§ 261.6(a),(h), 261.10(c),(k), 251.50(a). The "consult[ation]" with the United States forester that the New Mexico statute and Otero County Resolution contemplate is not sufficient to bring the county's actions within the federal regulatory exception and thereby render the state and local laws consistent with federal law, for consultation falls far short of ensuring that the county's actions are authorized by a special use authorization, permit, timber sale contract, federal law or regulation, or consent.
The Court concludes that a state or county's authorization of actions that violate federal regulations necessarily impedes the accomplishment and execution of the full purposes and objectives of Congress. Congress specifically provided that "[t]he Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon
The New Mexico statute and Otero County Resolution conflict with federal law not only because they authorize actions that violate multiple federal regulations, but also because they impede the purposes and objectives of Congress's comprehensive statutory scheme governing NFS planning and land management. Congress has established a limited, multiple-use mandate for NFS lands, prescribing that the national forests shall be used for the purposes of recreation, timber, fish and wildlife, and watershed and water flow management. See 16 U.S.C. § 528; id. § 475. Specifically, in the Organic Administration Act of 1897, Congress originally
Congress has delegated the authority to the USDA, and in turn, the Forest Service,
These statutes demonstrate Congress's intent to delegate to the Forest Service — not state or local governments — the task of managing the national forests pursuant to Congress's multiple-use mandate and that Congress intended the Forest Service's authority to be "broad," Wyoming II, 661 F.3d at 1235 (explaining that the Organic Administration Act's and MUSYA's provisions demonstrate that Congress delegated to the Forest Service "broad" discretion to regulate NFS lands) (citing Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979) ("The language found in [the MUSYA] ... breathe(s) discretion at every pore.")). The Organic Administration Act "reveals a clear intent of Congress to commit regulation of the national forests" for fire prevention, occupancy and use, and conservation purposes in a manner consistent with the multiple-use mandate "to the discretion of the Secretary [of the USDA]" and the Forest Service. Mountain States Tel. & Tel. Co. v. U.S., 499 F.2d 611, 614 (Ct. Cl. 1974), cited in Wyoming II, 661 F.3d at 1234. Similarly, by enacting the MUSYA, Congress demonstrated its clear intent to delegate broad discretion to the Forest Service, and not to state or local governments, to balance the many uses of the national forests in a manner that the Forest Service determines best serves the American people and satisfies Congress's multiple-use and sustained yield prescriptions. See 16 U.S.C. §§ 529, 531. Likewise, by enacting the NFMA, Congress clearly established how it wanted the national forests managed and by whom: Congress's purpose was to delegate to the Forest Service — not to state or local governments — the dual responsibilities of creating Forest Plans that facilitate the management of the national forests in a manner consistent with Congress's multiple-use mandate and federal law, and of ensuring that all third-party
The New Mexico statute and Otero County Resolution would reverse the roles of the Forest Service and local government and thus frustrate the very purpose of the statutory regime enacted by Congress. Subsection A of the state act provides that the federal government has "forfeit[ed]" its "jurisdictional supremacy" thereby creating a "jurisdictional vacuum" requiring New Mexico to "assum[e] jurisdiction to reduce to acceptable levels, if not remove, the threat of catastrophic fires posed by present conditions in national forests," N.M. Stat. Ann. § 4-36-11(A)(3), (4), and Subsection C authorizes a county, after "consulting with ... the regional United States forester," 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). The Otero County Resolution, which the county passed pursuant to the New Mexico act, "empower[s]" the county "to, after consulting with ... the Regional United States Forester, ... to 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." [Doc. 1-2 at 2]. These laws reverse the hierarchy contemplated by Congress and confirmed in numerous federal statutes. Under the state regime, the Forest Service is relegated to only the cooperative role of consultant and is left with no final decision-making authority. Instead, under the state laws it is Otero County that is empowered to decide what actions on NFS lands are necessary and what actions will be taken. For the reasons discussed below, it is "painfully apparent," Wyoming v. U.S., 279 F.3d at 1227, that this reversal in hierarchy, with all of its resulting implications, "`stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,'" Arizona, 132 S.Ct. at 2501 (quoting Hines, 312 U.S. at 67, 61 S.Ct. 399).
Congress's two primary purposes for enacting its statutory regime governing forest planning and land management were to preserve and facilitate its multiple-use mandate and to delegate broad discretion to oversee this task to the Forest Service. Congress long ago established its multiple-use mandate in 1897, when it passed the Organic Administration Act. See 16 U.S.C. § 475. Over sixty years later, in 1960, Congress reiterated this mandate when it enacted the MUSYA, see Wyoming II, 661 F.3d at 1221, and then again, sixteen years later in 1976, Congress carried forward its multiple-use mandate when it passed the NFMA, see id. at 1221-22. In addition, in the NFMA, Congress clearly charged the Forest Service — not state and local governments — with the task of managing NFS lands in a manner that the Forest Service determines best balances the many
The Otero County Resolution frustrates Congress's purposes underlying its statutory scheme. Under the state laws, Otero County undertakes the role of final decision-maker, and it is Otero County that will decide what actions are necessary and will be taken on NFS lands. This reversal directly contravenes the congressional purpose of placing the Forest Service in charge of determining how the national forests will be used. Moreover, the reversal impedes the congressional purpose of preserving and enforcing Congress's multiple-use mandate for the national forests because, unlike the Forest Service, Otero County is under no prescription to manage the national forests in a manner consistent with their many uses or to ensure that the many surface resources of the national forests are utilized in a harmonious combination. To the contrary, the New Mexico statute and Otero County Resolution expressly are aimed at the single purpose of "reduc[ing] to acceptable levels, if not remov[ing], the threat of catastrophic fires posed by present conditions in national forests," N.M. Stat. Ann. § 4-36-11(A)(4), without any regard for the environmental impact of this singular focus on the many uses of the forests or Congress's multiple-use mandate.
The state regime's singular focus on fire prevention is an approach that Congress specifically rejected when it enacted the Healthy Forests Restoration Act of 2003 ("HFRA"), in which Congress specifically charged the Forest Service with reducing the risk of wildfire on NFS lands by planning and implementing fuel reduction projects. See 16 U.S.C. § 6501 et seq. Although Congress delegated the task of reducing the risk of wildfire on NFS lands to the Forest Service, it nonetheless required the Forest Service to ensure that all hazardous fuel reduction projects are consistent with applicable Forest Plans, see id. § 6512(b), and federal land management and environmental laws, see id. § 6514(a)(1), (2). By requiring preventative fuel reduction projects to be consistent with federal plans and law, Congress implicitly rejected the state and county's singular focus on fire prevention. Forest Plans and federal laws are premised not upon the singular focus of fire prevention but rather upon the multi-faceted focus of preserving, protecting, and balancing the many uses of the national forests. Thus, by subjecting the Forest Service's fuel reduction projects to compliance with federal plans and laws, Congress confirmed that a primary purpose of its statutory framework was to ensure that the national forests are managed in a manner that preserves the forests for their many uses.
The state regime also frustrates an additional congressional purpose, established in the NFMA, of ensuring that all uses of NFS lands are evaluated pursuant to a multi-stage review and that all uses are consistent with the applicable Forest Plan and federal law. Under the NFMA, the Forest Service at the programmatic level must create Forest Plans that account for the different interests arising out of the forests' multiple uses and that comply with federal environmental laws, see Bosworth, 443 F.3d at 737; 16 U.S.C. §§ 1604(e), (g)(1), and at the project level must implement Forest Plans by approving
Having concluded that the New Mexico statute and Otero County Resolution conflict with federal law, both because they are in direct conflict with federal regulations and because they frustrate the objectives of Congress's comprehensive legislative scheme governing national forest planning and management, the Court holds that the Supremacy Clause of the Constitution requires the Court to declare the New Mexico statute and Otero County Resolution invalid. It is well settled that, when state law conflicts with federal law, federal law preempts state law. See Arizona, 132 S.Ct. at 2500-04 (explaining that "[f]rom the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes," that "[t]he Supremacy Clause provides a clear rule that federal law `shall be the supreme Law of the Land,'" and that under this principle "Congress has the power to preempt state law") (quoting U.S. Const. art. VI, cl.2) (additional citation omitted). Here, the New Mexico statute and Otero County Resolution are preempted because they directly conflict with federal law. Accordingly, the Court grants the United States' Motion for Summary Judgment to the extent it seeks a declaration that Otero County Resolution Number 05-23-11/99-50 is in conflict with federal law, that the Resolution violates the Supremacy Clause of the United States Constitution, and that the Resolution therefore is invalid. The Court further denies Otero County's Motion for Summary Judgment because the relief Otero County seeks is contrary to this Court's resolution of the legal dispute at issue therein.
The United States seeks summary judgment on its claim against the State of New Mexico, in which it asks the Court to declare that Section 4-36-11 of New Mexico Statutes Annotated is in conflict with federal law, that the state law violates the Supremacy Clause of the United States Constitution, and that it therefore is unconstitutional and must be invalidated. [Doc. 1 ¶ 55]. In opposition to this motion, the State of New Mexico does not argue, as did Otero County, that it has a Tenth Amendment right to regulate federal lands or that the United States has exceeded its Property Clause powers by enforcing federal laws against the state. [Doc. 78 at 9
New Mexico argues that Section 4-36-11 is constitutional because the consultation requirement set forth in Subsection (C) can be "interpreted as binding, so that any action by a county can only take place after the approval of the United States," and that, when so construed, the statute does not conflict with federal law. [Id. at 2]. In support of this argument, the state first contends that its construction of "consult[]" is supported by the dictionary definition, which defines "consult" as "`to talk about something with (someone) in order to make a decision.'" [Id. at 9 (quoting Merriam-Webster Dictionary Online, http://www.merriam-webster.com/dictionary/consult (Aug. 15, 2014)]. The Court earlier rejected this argument in the context of ruling upon the cross-motions for summary judgment between the United States and Otero County. As the Court explained, the definition of "consult" is "to talk about something ... in order to make a decision." This definition only implies that, prior to reaching a decision, two or more parties discuss "something," presumably relevant to the decision, for the purpose of making the decision.
The Court refuses to adopt New Mexico's strained interpretation of "consult" that requires anything more than its ordinary definition. The definition of "consult" says nothing about the relative weight or binding effect of any one discussing-participant's opinion on what the actual decision itself should be. Thus, it does not place the federal forester in a superior position to that of the county, and it does not require the county to defer to the federal forester. If the New Mexico legislature had intended to make the United States forester's decision arising out of the consultation final and binding, as New Mexico asserts, the legislature would not have selected for the language in its statute a neutral word such as "consult," which says nothing of the relative decision-making power of the participants to the discussion. Instead, the legislature would likely have chosen any one of the multitude of obvious linguistic choices available to it that would have conveyed — in a clear and straightforward manner — that the county must first obtain Forest Service authorization prior to taking any action on NFS lands.
New Mexico's interpretation is contrary to the plain meaning of the statute. When a statute is clear and unambiguous, pursuant to the rules of statutory construction, the Court must give effect to that language without further interpretation. See, e.g., Diamond v. Diamond, 283 P.3d 260, 265 (N.M. 2012) (It is well settled that "[w]here the language of a statute is clear and unambiguous, [a court] must give effect to that language and refrain from further statutory interpretation.") (citation omitted). The New Mexico statute's pre-condition of consultation with the United States forester means precisely what the definition of "consult" conveys. A county is required to "talk" with the Forest Service but not to obtain the Forests Service's consent.
The Court also rejects New Mexico's "preferable" interpretation of the New Mexico statute because it is not consistent with the statute's legislative intent. It is well established that in "interpreting a
[Doc. 92 at 23-24].
Subsection A of the statute reveals that the clear and unequivocal intention of the New Mexico legislature was to place the state and county (not the federal Forest Service) in a superior position in the state-federal hierarchy and to grant the local (not federal) government the right to make the final decision to cut and remove trees on NFS lands. See N.M. Stat. Ann. § 4-36-11(A). Subsection A expresses, in detail, the legislature's intent to strip the federal government of its "jurisdictional supremacy," to forfeit that supremacy to the state and counties, and to authorize the state and counties to take any actions they deem necessary to reduce if not remove the threat of catastrophic fires in the national forests. See id. New Mexico's "preferable" interpretation of "consult, which requires a county to obtain federal approval prior to taking any actions on federal land, is the opposite of what the New Mexico legislature intended. Because legislative intent is pivotal, the Court rejects New Mexico's interpretation.
The state attempts to overcome this shortcoming by arguing the Court should sever Subsection A from the remainder of the statute. In support of this argument, the state cites State v. Frawley, 143 N.M. 7, 172 P.3d 144, 155 (2007), in which the Supreme Court of New Mexico held that "`where the invalid part [of a law] may be separated from the other [valid] portions, without impairing the force and effect of the remaining parts,'" a court may sever the invalid part and thereby render the remainder of the statute valid. Id. (quoting Bradbury & Stamm Constr. Co. v. Bureau of Revenue, 70 N.M. 226, 372 P.2d 808, 811 (1962) (additional citation omitted), cited in Doc. 78 at 10. Frawley holds, however, that severance is not appropriate "when considering the entire act it cannot be said that the legislature would have passed the remaining part if it had known that the objectionable part was invalid." 172 P.3d at 155. It is clear that, had the legislature known that Subsection A would violate the Constitution, i.e., that New Mexico could not lawfully grant counties the authority to
The Court likewise is not persuaded by New Mexico's arguments that its proposed interpretation of Section 4-36-11(C) is "preferable" because it renders the statute constitutional, it comports with federal laws that encourage and require state and local participation in national forest planning, and it is consistent with the cooperative efforts that already have occurred between the parties. [Doc. 78 at 8]. Although the Supreme Court has acknowledged that "of course, statutes should be construed whenever possible so as to uphold their constitutionality," U.S. v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); see also In re Stewart, 175 F.3d 796, 812 (10th Cir. 1999) (explaining that courts should "avoid resolution of the constitutionality of a statute if a reasonable, alternative statutory interpretation poses no constitutional question") (emphasis added and citations omitted), this rule of interpretation in no way sanctions the reading of a statute in a manner that is inconsistent with the plain meaning of its language. Furthermore, where, as here, the "legislature clearly intended" a statute to achieve a particular result — i.e., placing the County in a position superior to that of the federal Forest Service — "and the constitutional issue can be easily resolved," our Tenth Circuit has held that "[it is] more prudent to resolve the constitutional issue than `press statutory construction to the point of disingenuous evasion.'" In re Locke, 175 F.3d at 812 (quoting U.S. v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985)); see also Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (stating that "although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute ... or judicially rewriting it") (internal quotation marks and citations omitted). The state's proposed interpretation of the statute's consultation requirement is precisely the type of "disingenuous evasion" that the Tenth Circuit has instructed courts to reject.
The Court also is not persuaded that it should adopt the state's proposed interpretation because it is consistent with other federal statutes encouraging cooperation at federal, state, and local levels, or because it is consistent with the parties' alleged experience of "work[ing] together" as contemplated by Section 4-36-11. [Doc. 78 at 10]. The state fails to cite, and this Court has not found, any authority supporting the proposition that statutes should be interpreted in a manner inconsistent with their plain meaning if that interpretation renders the statute consistent with other federal laws or reflects the actual experience of the parties implementing the statute.
For the reasons stated herein, the Court holds that the plain language of the New
The Court denies PLF's Motion for Leave to File Brief Amicus Curiae. The United States has standing to assert its claims, its claims are ripe, and this Court therefore has subject matter jurisdiction over the claims. In addition, on the merits of the motions for summary judgment, the Court concludes that, for the reasons articulated herein, the Property Clause of the United States Constitution grants Congress plenary power (and the Tenth Amendment therefore does not reserve for New Mexico any sovereign police power) over federal lands, that the New Mexico statute and Otero County Resolution conflict with federal law, that the statutory language of the New Mexico statute and its legislative intent prevent the Court from interpreting the statute in a manner consistent with federal law, and that the statute and Resolution therefore violate the Supremacy Clause of the United States Constitution, are preempted by federal law, and are invalid.
16 U.S.C. § 531(a). The act defines "[s]ustained yield" as "the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land." Id. § 531(b).
