Federal Court of Appeals Holds that Otero County Resolution Authorizing Removal of Trees from Lincoln National Forest is Unconstitutional

ALBUQUERQUE – The U.S. Court of Appeals for the Tenth Circuit has upheld the October 2015 ruling of the U.S. District Court for the District of New Mexico that an Otero County resolution permitting the removal of trees from the Lincoln National Forest is unconstitutional because it violates the Supremacy Clause of the U.S. Constitution.  The Court of Appeals also agreed that the New Mexico state statute on which the Otero County resolution relied was unconstitutional because it too violated the Supremacy Clause.  Both the New Mexico state statute and the Otero County resolution have been invalidated.

The lawsuit was filed in Feb. 2012, by the Justice Department on behalf of the Forest Service, an agency of the U.S. Department of Agriculture, against the State of New Mexico and the Otero County Commission.  At issue in the lawsuit was the alleged authority of the State and Otero County to assert control over federal lands without the consent of the federal government, and in conflict with federal laws governing those lands.

The state statute (N.M.S.A. § 4-36-11) was enacted in 2001 and purported to authorize counties to clear undergrowth and trees on National Forest System lands without the consent of the Forest Service.  In May 2011, the Otero County Commission passed the resolution claiming power to remove alleged fire hazards from federal lands within the County without first complying with federal law.  The County also announced plans to cut and remove trees from more than 60,000 acres of lands on the Lincoln National Forest, without approval from the Forest Service.

In October 2015, the District Court entered an order declaring that the New Mexico statute and Otero County resolution were preempted by federal law and thus were unconstitutional.  The Otero County Commission appealed this decision to the Court of Appeals.  The State of New Mexico did not appeal.

On December 8, 2016, the Court of Appeals unanimously rejected the Otero County Commission’s appeal, and affirmed the District Court’s decision in its entirety.  The Court of Appeals found that binding Supreme Court case law establishes that the Property Clause of the U.S. Constitution gives the federal government complete power over federal property.  Thus, while State and local governments can ordinarily exercise 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.  The Court stated that “[w]hen 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.”  The Court concluded that the Otero County resolution and New Mexico state statute were unconstitutional because they were inconsistent with Forest Service regulations governing National Forests under several federal statutes enacted by Congress. 

Senior Litigation Counsel David C. Shilton and Senior Trial Attorney Andrew A. Smith of the Justice Department’s Environment and Natural Resources Division, and Assistant U.S. Attorney Ruth F. Keegan of the U.S. Attorney’s Office for the District of New Mexico, represented the United States in this litigation.  They were assisted by Nicholas L. Pino of the U.S. Department of Agriculture, Office of General Counsel.