United States v. Board of County Commissioners , 843 F.3d 1208 ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 8, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-2210
BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF OTERO,
Defendant - Appellant,
and
STATE OF NEW MEXICO,
Defendant.
------------------------------
PACIFIC LEGAL FOUNDATION,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:12-CV-00120-MCA-SMV)
_________________________________
Dori E. Richards (A. Blair Dunn, with her on the briefs), Western Agriculture, Resource
and Business Advocates, LLP, Albuquerque, New Mexico, for Appellant.
David C. Shilton (Nicholas L. Pino, USDA Office of General Counsel, Albuquerque,
New Mexico, John C. Cruden, Assistant Attorney General, and Andrew A. Smith, with
him on the brief), Environment and Nat. Res. Div., U.S. Department of Justice,
Washington, D.C., for Appellee.
John M. Groen and Anthony L. FranHois, Pacific Legal Foundation, Sacramento,
California, filed an Amicus Curiae brief in support of Appellant.
_________________________________
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
A New Mexico statute and a resolution adopted by the Otero County Board of
County Commissioners purported to authorize the Board to mitigate fire danger in the
Lincoln National Forest without first obtaining permission from the U.S. Forest Service.
The United States obtained a judgment from the United States District Court for the
District of New Mexico invalidating the statute and the resolution. The Board appeals.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Property Clause of the
United States Constitution authorizes the federal government to promulgate regulations
governing use of national forest lands; and under the Constitution’s Supremacy Clause
and binding precedent, those regulations prevail over any contrary state or local law.
I. BACKGROUND
In recent years New Mexico has suffered from major fires originating on federal
land within the state. Apparently in response to a devastating fire that consumed many
homes in the city of Los Alamos, the state legislature in 2001 enacted a statute
authorizing self-help by local communities. Recognizing “inaction on the part of the
forest service to appropriately reduce, if not remove, the risk to the lives and property of
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the citizens of New Mexico,” the statute enabled “a board of county commissioners for a
county in which a disaster has been declared . . . [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” after, among other things, consulting with the Forest Service. N.M. Stat. Ann. §
4-36-11(A)(2), (C) 1978.1
1
The statute provides in full:
A. The legislature finds that:
(1) numerous citizens and government officials in the state of New Mexico
have repeatedly petitioned the United States forest service both collectively
and individually at public meetings, by correspondence and by telephone to
request that the forest service take appropriate action to remove or eliminate
the conditions that have created a state of emergency caused by a present
risk to the lives and property of citizens in and adjacent to national forests
within New Mexico;
(2) all the petitions have for all practical purposes been either ignored or
discounted by the United States forest service resulting only in what can be
reasonably characterized as inaction on the part of the forest service to
appropriately reduce, if not remove, the risk to the lives and property of the
citizens of New Mexico;
(3) because the United States forest service has failed to exercise its
responsibilities as a sovereign to protect the lives and property of the
citizens of New Mexico and because 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, such a forfeiture must hereby be recognized and declared; and
(4) because of recognition and declaration of this forfeiture of jurisdictional
supremacy, a jurisdictional vacuum has been created that requires the state
of 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,
3
Fire danger from federal land was a significant concern in Otero County, where
over 75% of the land is owned by the United States. On May 6, 2011, the Sacramento
Ranger District issued a letter “closing the Lincoln National Forest due to the drought and
extremely high fire risk.” Cty. Resolution, Aplt. App., Vol. I at 30. The Board followed
suit on May 23, passing a resolution declaring “a state of emergency and disaster . . . in
and around the communities and watersheds in the Sacramento Mountains.” Id. at 31.
The resolution noted the County’s statutory authority to take any necessary action to
remove hazardous vegetation within the area after consulting with the Forest Service.2
if not remove, the threat of catastrophic fires posed by present conditions in
national forests within its borders.
B. The legislature declares a disaster within those areas of the national
forests of New Mexico that suffered severe fire damage, as determined by
the local board of county commissioners, where large amounts of forest
undergrowth have created the potential for damaging fires in the future. The
legislature also declares that the disaster 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.
C. After consulting with the state forester and the regional United States
forester, taking surveys, holding those public hearings as may be necessary
and developing a plan to mitigate the effects of the disaster, a board of
county commissioners for a county in which a disaster has been declared
pursuant to Subsection A of this section may 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. A county may enter into an
agreement with a contractor, licensee or other agent to carry out the
purposes of this subsection.
N.M. Stat. Ann. § 4-36-11 (emphasis added).
2
The relevant provision of the resolution provides:
4
The Board retained a consultant to prepare a plan to mitigate the danger. The plan
proposed to “restore” 69,000 acres in the Lincoln National Forest by extracting “small
and medium size . . . standing live and dead trees and wood materials.” Dist. Ct. Summ.
J. Opinion, Aplt. App., Vol. II at 388 (Dist. Ct. Op. at 4) (internal quotation marks
omitted). A modified plan called for the “treatment of 1,200 to 1,500 acres . . . in an area
within Mexican Spotted Owl (MSO) habitat with MSO present in the area.” Dist. Ct. Op.
at 8 (internal quotation marks omitted). The Board decided to implement the plan and
notified the Forest Service. The Forest Service did not approve the proposed measures.
When the Board indicated that it was going to execute the plan anyway, the United
States sued the Board and the State of New Mexico in federal court seeking a declaration
that the resolution and its enabling statute were preempted by conflicting federal law.
The United States also sought to enjoin public officials from implementing the plan on
federal lands without prior approval from the Forest Service. It relied on federal
BE IT FURTHER RESOLVED that the Board of County
Commissioners hereby formally notifies State and Federal officials that
pursuant to NMSA 1978 §4-36-11 C. it is empowered to, after consulting
with the State Forester and the Regional United States Forester, taking
surveys, holding those public hearings as may be necessary and developing
a plan to mitigate the effects of the disaster, as a county in which a disaster
has been declared pursuant to Subsection A of NMSA 1978 §4-36-11 may
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. Otero
County may also enter into an agreement with a contractor, licensee or
other agent to carry out the purposes of NMSA 1978 §4-36-11.
Cty. Resolution, Aplt. App., Vol. I at 31.
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regulations requiring Forest Service consent before anyone could cut, damage, or remove
trees or brush from a national forest.
The district court granted summary judgment to the United States. The court first
ruled that because the threatened injury (actions on federal land without Forest Service
approval) was impending at the time of suit, the United States had standing and its claims
were ripe for adjudication. On the merits the court held that “the Property Clause grants
the federal government plenary power over federal lands, and consequently . . . the Tenth
Amendment does not reserve an exclusive sovereign right to New Mexico to regulate
federal lands in contravention of federal law.” Id. at 9. The state statute and local
resolution thus were preempted under the Supremacy Clause, as they conflicted with
federal law. The court rejected the State’s suggested construction of the statute to make it
consistent with federal law, saying that the suggested construction was contrary to “the
statute’s plain and unambiguous language [and] its legislative intent.” Id.
The Board, but not the State, appeals. It does not challenge the district court’s
rulings on standing and ripeness. And, consistent with the position it took in the district
court, it offers no argument that the resolution or statute can be read in a manner
consistent with federal law. It frames the sole issue on appeal as: “[D]oes the Property
Clause of the United States Constitution so thoroughly preempt state power that a state
may not, under any circumstances, remove a deadly and destructive nuisance from
National Forest lands even where the United States refuses or fails to remove that danger
itself[?]” Aplt. Reply Br. at 1.
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II. DISCUSSION
There is no dispute that a local government can ordinarily exercise its police
powers to mitigate fire danger within its territorial boundaries. But a federal regulation
promulgated by the Department of Agriculture requires permission of the Forest Service
before anyone can “[c]ut[] or otherwise damag[e] any timber, tree, or other forest
product” in a national forest. 36 C.F.R. § 261.6(a) [(2016)]. The Board has not
questioned the statutory authority to promulgate the regulation. The issue before us is
solely one of constitutional power. The constitutional authority invoked by the United
States is the Property Clause, which states: “The Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or other Property
belonging to the United States.” U.S. Const. art. IV, § 3, cl. 2.
Although the United States has title to the Lincoln National Forest, the Board
contends that the federal government’s power over that land under the Property Clause
must be limited. It says that the federal regulation at issue here reaches beyond the
proper scope of the Property Clause because it “deprives the State of New Mexico and
Otero County of the ability to protect the health, safety and welfare of their citizens . . . ,
skewing the ‘healthy balance of power’ between the States and the Federal government.”
Aplt. Br. at 33. According to the Board, “It is both troubling and nearly inconceivable . .
. that the federal government would have unfettered and absolute authority over lands not
expressly proclaimed by the Constitution as necessary for federal governance.” Id. at 23–
24. In particular, it says, the Property Clause does not grant the federal government
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“absolute, unfettered plenary power” to prohibit the States from taking measures they
deem necessary “to protect their citizens from impending harm.” Id. at 40–41. This
power not being conveyed to the federal government, the argument continues, it must be
reserved to the States under the Tenth Amendment. See U.S. Const. amend. X (“The
powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.”). Thus, when, as in this
case, “the United States fails or refuses to remove from federal lands a condition that
poses an imminent threat of extreme danger to the life and property of a state’s citizens,
. . . the Tenth Amendment reserves to the state powers sufficient to take reasonable,
minimally invasive steps to abate the dangerous condition.” Aplt. Reply Br. at 7.
Binding precedent requires us to reject the Board’s argument. The Supreme
Court, followed by this court, has declared that the Property Clause gives the federal
government plenary power, including legislative and police power, over federal property.
Although state and local governments can ordinarily exercise their police powers over
federal land within their boundaries, those powers must yield under the Supremacy
Clause when they conflict with federal law under the Property Clause.
We begin with the Supreme Court’s decision in Kleppe v. New Mexico, 426 U.S.
529 (1976), which reviewed the constitutionality of the Wild Free-Roaming Horses and
Burros Act (Wild Horses Act), 16 U.S.C. §§ 1331–1340. Congress passed the Act “to
protect all unbranded and unclaimed horses and burros on public lands of the United
States” and specified that “all such horses and burros on the public lands administered by
8
the Secretary of the Interior . . . or by the Secretary of Agriculture . . . are committed to
the jurisdiction of the respective Secretaries.” Kleppe, 426 U.S. at 531 (internal quotation
marks omitted). Seeking to exercise control over wild horses and burros on federal lands,
the State of New Mexico sought a declaration that the Act was unconstitutional. See id.
at 534. It argued in part that the Act could not be sustained under the Property Clause
because “[t]he statute is aimed at protecting the wild horses and burros, not at protecting
the land they live on.” Id. at 535 (internal quotation marks omitted).
In rejecting the State’s argument, the Court described the scope of the Property
Clause in broad terms. It stated that “Congress exercises the powers both of a proprietor
and of a legislature over the public domain” and that “even over public land within the
States, [t]he general government doubtless has a power over its own property analogous
to the police power of the several states.” Id. at 540 (internal quotation marks omitted).
To be sure, the Court observed that “the furthest reaches of the power granted by the
Property Clause have not yet been definitively resolved.” Id. at 539. The uncertainty to
which it referred, however, appears to concern not power over federal land but power
over property outside federal land. Two paragraphs earlier the Court had discussed
Camfield v. United States, 167 U.S. 518 (1897), which recognized authority to regulate
“fences built on private land adjoining public land when the regulation is for the
protection of the federal property.” Kleppe, 426 U.S. at 538. Although the Court quoted
language from Camfield noting limits on federal power, it concluded by saying:
“Camfield contains no suggestion of any limitation on Congress’ power over conduct on
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its own property; its sole message is that the power granted by the Property Clause is
broad enough to reach beyond territorial limits.” Id. (emphasis added). Indeed, the Court
said that it had “repeatedly observed that [t]he power over the public land thus entrusted
to Congress is without limitations.” Id. at 539 (emphasis added) (internal quotation
marks omitted). It noted that in a prior decision the Court had said “that the Property
Clause gives Congress the power over the public lands ‘to control their occupancy and
use, to protect them from trespass and injury, and to prescribe the conditions upon which
others may obtain rights in them . . . .’” Id. at 540 (quoting Utah Power & Light Co. v.
United States, 243 U.S. 389, 405 (1917)). The Court upheld the Wild Horses Act as
falling within “the complete power that Congress has over public lands,” which “includes
the power to regulate and protect the wildlife living there.” Id. at 540–41 (internal
quotation marks and footnote omitted).
Kleppe confronted and rejected the argument (an argument quite similar to one
made by the Board) “that if we approve the Wild [Horses] Act as a valid exercise of
Congress’ power under the Property Clause, then we have sanctioned an impermissible
intrusion on the sovereignty, legislative authority, and police power of the State.” Id. at
541. The Court’s response was short and categorical: “The Federal Government does
not assert exclusive jurisdiction over the public lands in New Mexico, and the State is
free to enforce its criminal and civil laws on those lands. But where those state laws
conflict with . . . legislation passed pursuant to the Property Clause, the law is clear: The
state laws must recede.” Id. at 543.
10
In Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002), this circuit applied
Kleppe’s reasoning to another Tenth Amendment challenge to a federal regulation based
on the Property Clause. The challenge arose from a disagreement between the State of
Wyoming and the federal government over how to address a disease that was afflicting
elk on federal lands and posing a threat to domestic cattle. See id. at 1218, 1219–22.
Wyoming filed suit against the United States and the Secretary of the Interior claiming
that the federal government had interfered with its “‘sovereign right’ to manage wildlife
within its borders” when the federal government refused to allow the State to vaccinate
elk on federal land. Id. at 1222.
Wyoming challenged the federal government’s actions on the ground that the
Tenth Amendment reserves to the States “the right to manage wildlife on [federal land] to
protect its own wildlife and domestic livestock.” Id. at 1224. We observed that although
the States historically have possessed broad powers over wildlife (even on federal lands),
the Supreme Court had ruled that those powers must yield under the Supremacy Clause
when they conflict with federal law enacted under the Property Clause. See id. at 1226–
27. We repeated the Supreme Court’s declaration that “Congress’ power [over federal
land] is ‘plenary,’” id. at 1227 (quoting Cal. Coastal Comm’n v. Granite Rock Co., 480
U.S. 572, 581 (1987)), and we noted Kleppe’s holding that the Property Clause allows
Congress to regulate and protect wildlife living on federal lands, see id. In our view, “the
point [was] painfully apparent that the Tenth Amendment does not reserve to the State of
Wyoming the right to manage wildlife, or more specifically vaccinate elk, on [federal
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land].” Id.; see also id. at 1226 (“If the Constitution delegates to Congress the power to
exercise management authority over federal land, including the wildlife thereon, ‘the
Tenth Amendment expressly disclaims any reservation of that power to the States.’”
(quoting New York v. United States, 505 U.S. 144, 156 (1992))).
The Board argues that these declarations are based on a misunderstanding of
constitutional history and are nonbinding dicta because they did not address the
compelling local interests at stake in this case. We are not persuaded. Perhaps the
statements about the unlimited power of the federal government over its lands could be
considered dicta because they are somewhat broader than necessary to resolve the
disputes before the courts. See Cohens v. Virginia 19 U.S. 264, 399 (1821) (“It is a
maxim, not to be disregarded, that general expressions, in every opinion, are to be taken
in connection with the case in which those expressions are used. If they go beyond the
case, they might be respected, but ought not to control the judgment in a subsequent suit,
when the very point is presented for decision.”); cf. Bryan A. Garner et al., The Law of
Judicial Precedent, 61 (2016) (noting “the degree of judgment that goes into classifying a
court’s reasoning as holding or dictum”). But each statement was fully considered, went
to the core of the issue under review, and was the explicit basis for the decision. See
Garner at 51 (“The distinction between a holding and a dictum . . . [depends] on whether
the solution of the particular point was more or less necessary to determining the issues
involved in the case.”) And the statements by the Supreme Court are entitled to great
weight even if technically dicta; we have regularly followed statements of the Court that
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clearly were not holdings. See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1209–11 (10th
Cir. 2013) (following dictum in Robertson v. Baldwin, 165 U.S. 275 (1897), in part
because dictum had not been “enfeeble[d]” by recent jurisprudence); Gaylor v. United
States, 74 F.3d 214, 217 (10th Cir. 1996); see generally Garner at 69–70 (“[N]ot all dicta
are created equal. Intermediate courts typically treat higher courts’ dicta—those in
vertical precedents—with greater respect than their own, not only because of the position
of the higher court, but also because today’s dicta are an indication of what may well be
tomorrow’s binding precedent.” (footnote omitted)). We have no authority to reject the
reasoning behind a Supreme Court holding—whether based on questionable logic or
history—and we see nothing in Supreme Court opinions suggesting that the Court might
limit its precedents declaring that the federal power at issue here is “plenary,” Granite
Rock, 480 U.S. at 581, and “without limitations,” Kleppe, 426 U.S. at 539 (internal
quotation marks omitted).
The district court properly rejected the Board’s argument that state law can escape
preemption if the general purposes behind state and federal law diverge. It observed that
the Supreme Court has “held that . . . the purpose of the laws, whether parallel or
divergent, is not relevant to the preemption inquiry.” Dist. Ct. Op. at 46. As the
Supreme Court said in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132(1963), it “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,” id. at 142 (citations
13
omitted). “The test,” it said, “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.” Id. Thus, it makes no difference that the federal purpose
may be, say, protection of the habitat of an endangered or threatened species whereas the
Board’s interest is protection of human life and home. When different governments
differ in their assessment of danger, one must prevail, and the Supremacy Clause says
that in these circumstances it must be the United States. See U.S. Const. art. VI, cl. 2
(“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land.”). As the Supreme Court said in
Kleppe, “A different rule would place the public domain of the United States completely
at the mercy of state legislation.” 426 U.S. at 543 (internal quotation marks omitted).3
III. CONCLUSION
We AFFIRM the decision of the district court. The New Mexico statute and the
County resolution must yield to federal law regarding conduct on federal land. In its
3
The County may have a right to take action when the fire danger is immediate. The
government has suggested in this case that self-help is permitted in an emergency. See
Aplee. Fed. R. App. P. 28(j) Letter of 9/28/16 at 1–2 (under federal regulation, “the
County could respond to an actual wildfire emergency without prior authorization so long
as it applies for a special use permit at the earliest opportunity”); cf. McDonald v. City of
Chicago, 561 U.S. 742, 767 (2010) (“Self-defense is a basic right, recognized by many
legal systems from ancient times to the present day . . . . ”); United States v. Toledo, 739
F.3d 562, 567 (10th Cir. 2014) (“A person may resort to self-defense if he reasonably
believes that he is in imminent danger of death or great bodily harm.”). We express no
view on the government’s suggestion. The important point for present purposes is that
any exception to the broad sweep of the federal regulation must come from federal, not
state or local, law.
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amicus curiae brief in support of the Board, Pacific Legal Foundation argues that the
County can hold the Forest Service liable under federal common law for maintaining a
public nuisance (extreme fire risk) on federal land. But that issue is not properly before
us, because it has not been raised by a party. See Tyler v. City of Manhattan, 118 F.3d
1400, 1403 (10th Cir. 1997) (declining to address previously unraised argument in
amicus curiae brief because framing of the issues on appeal is “a prerogative more
appropriately restricted to the litigants”). For the same reason, we do not address whether
the Board may obtain relief under the Administrative Procedure Act (APA). See
Wyoming, 279 F.3d at 1239 (State may pursue relief under APA regarding federal
government’s denial of State’s request to vaccinate elk on federal land). The sole issue
before us is whether federal law preempts the state statute and County resolution. We
hold that it does.
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