California’s Duty to Protect Its Citizens from Catastrophic Wildfires
© 2016 CLIFFORD C. NICHOLS, ESQ.
A few weeks ago, California watched the Blue Cut Fire quickly become a massive inferno. Reportedly it burned with an intensity greater than many firefighters had ever seen. Commander Mike Wakoski told the Associated Press, “In my 40 years of fighting fires, I’ve never seen fire behavior so extreme.” The result? Like other catastrophic fires in California this year, many homes have burned and many more lives have been devastated.
One question raised has been, was this disaster avoidable? Perhaps the better question, however, would be, what is California willing to do now to reduce the risk of something like this happening again... and again... and again in the future?
To answer the latter question will require California’s willingness to acknowledge and confront an elephant in the room: most wildfires of catastrophic proportions in California and throughout the West occur on lands controlled by the federal government within its borders. It is there that environmentalist litigation coupled with concurrent federal lands mismanagement over the last several decades has resulted in the accumulation of unreasonably excessive forest overgrowth and deadfall, a condition that constitutes nothing less than excessive combustible fuel that cause fires in this state to become both explosive and unstoppable. A fact that remains true regardless of the source by which any particular fire may be ignited (e.g. a tossed cigarette, lightning or an abandoned campfire).
In short, often whatever may ignite a fire (e.g. a campfire, a match, a cigarette or lightning) is not nearly as important as attempting to remove those conditions that will cause it to become catastrophic after it begins. Put differently, the same match can used to either light a candle, or light the fuse to a keg of dynamite. That is the essence of the choice that needs to me made in our forests.
Several years ago in New Mexico, its state legislators acted with a collective courage that California might now wish to consider pursuing. They began by acknowledging and confronting the elephant: the continued existence of overgrowth and deadfall on federal lands posed an unacceptable and unnecessary risk of future catastrophic wildfires that, if allowed to remain, posed a continuous threat to the lives and property of New Mexico’s citizens. Then, not long afterwards, Governor Gary Johnson signed into law what has become commonly known in New Mexico as Senate Bill 1. It provides, in pertinent part, as follows:
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. FINDINGS - - DECLARATION OF DISASTER - - POWERS OF COUNTY COMMISSIONS –
“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...;
(3) Because the United States Forest Service has failed to exercise its responsibilities as a sovereign... New Mexico [finds] ... the forfeiture of [the federal government’s] jurisdictional supremacy... must hereby be recognized and declared; and
(4) Because 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.. [and]... reduce to acceptable levels, if not remove, the threat of catastrophic fires posed by present conditions in national forests within its borders.
B. The legislature declares a disaster... 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... 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.
Section 2. EMERGENCY — It is necessary for the public peace, health and safety that this act take effect immediately.”
It is noteworthy that Donald Trump received a standing ovation at the RNC for stating the following truism:
"The most basic duty of government is to defend the lives of its own citizens. Any government that fails to do so is a government unworthy to lead."
New Mexico’s Senate Bill 1 was premised upon none other than exactly that very same simple principal — if one sovereign (i.e. the federal government) is unwilling to fulfill its most basic duty to protect the lives and property of its citizens, it should be found unworthy to lead, and, at the very least, be willing to step aside to let the affected counties of that state fill the void by fulfilling that duty.
Thus, in response to the Blue Cut and other explosive fires we have had to experience in California, shouldn't the question going forward now be, is California finally now ready to, not only acknowledge, but confront our state’s elephant in the room... and at least attempt to prevent future catastrophic wildfires like the Blue Cut from happening again?
Cliff Nichols is an attorney licensed to practice in California and New Mexico. He both drafted and successfully lobbied for the enactment of Senate Bill 1 in New Mexico. He may be contacted regarding this editorial at cnicholslaw.com