BOARD OF COUNTY COMMISSIONERS
COUNTY OF OTERO
STATE OF NEW MEXICO
A RESOLUTION BY THE COUNTY OF OTERO TO:
1 DECLARE A STATE OF EMERGENCY IN RECOGNITION OF THE PRESENT AND IMMEDIATE THREAT TO THE LIVES AND PROPERTY OF CITIZENS OF THE STATE OF NEW MEXICO CAUSED BY THE EXTREME AND UNREASONABLE RISK OF CATASTROPHIC FIRES CREATED BY EXISTENT CONDITIONS IN THE NATIONAL FORESTS LOCATED IN OTERO COUNTY; AND
2. RESPECTFULLY REQUEST THAT THE GOVERNOR OF THE STATE OF NEW MEXICO ACKNOWLEDGE AND RATIFY THIS STATE OF EMERGENCY AND TAKE ANY AND ALL NECESSARY, APPROPRIATE AND IMMEDIATE ACTIONS PURSUANT TO THE POWERS VESTED IN HIM BY THE CITIZENS OF THIS STATE OF NEW MEXICO TO EFFECT A REMEDY THAT WILL REMOVE THIS THREAT TO ITS CITIZENS.
WHEREAS, the Board of County Commissioners of Otero County (Otero County Commissioners) recognizes that included among its most fundamental duties owed to its citizens is its duty to take such actions as it deems are necessary and appropriate to protect the lives and property of its citizens from unjustified destruction, harm, injury or death;
WHEREAS, the Otero County Commissioners have been called upon by its citizens to acknowledge that present conditions in the Lincoln National Forest located within Otero County have created a real and unjustified threat of catastrophic fire that constitutes a present extreme danger to the lives and property of the citizens of Otero County and to take such actions as are or may be necessary to remove this present threat to its citizens;
WHEREAS, the Otero County Commissioners have acknowledged and/or personally observed that this year alone forest fires largely on National Forests and other federally controlled lands have consumed 6 million acres and 500 homes in western states, including the Scot Able Fire in the Sacramento Mountains of Otero County that destroyed ___ homes of its citizens;
WHEREAS, the Otero County Commissioners have received and carefully reviewed and evaluated a variety of information and data from many sources including, without limitation, the United States Congress, the United States General Accounting Office, the United States Forest Service that have caused them to reasonably conclude that mismanagement practices and policies of the United States Forest Service are a material and proximate cause of the conditions in the National Forests that have produced the extreme and unreasonable risk of catastrophic fire that threatens its citizens and the multitude of communities they live and work in that are either surrounded by or border the Lincoln National Forest;
WHEREAS, due to their review and evaluation of said information and data, the Otero County Commissioners have further determined that another consequence of such mismanagement by the Forest Service is the creation of an additional threat to the health and welfare of its citizens resulting from the degradation of the water supply, water quality, and watershed within Otero County;
WHEREAS, the Otero County Commissioners and citizens of Otero County have repeatedly petitioned the Forest Service at public meetings, by correspondence and by telephone to take appropriate action to remove or eliminate these threats to the lives and property of its citizens but to no avail whatsoever;
WHEREAS, the Otero County Commissioners have further determined that the Forest Service has a policy of inappropriately and wrongfully redirecting and misplacing the blame for their inaction to remedy said problems on others including, without limitation, the rural industries of logging and ranching that are then further victimized by said misplaced blame being used by the Forest Service to justify its policies that are frequently adverse to the interests of said rural industries in the extreme;
WHEREAS, the Otero County Commissioners have further determined that when Forest Service mismanagement is questioned they assert possession of a sovereign right to manage the National Forests to justify their ignoring our petitions requesting they reduce said threat to life and property;
WHEREAS, the Otero County Commissioners have further determined it is beyond question in the minds of reasonable men that the Forest Service has utterly failed to exercise that sovereign right prudently, responsibly or with adequate justification in that its exercise of that right has exposed citizens of the State of New Mexico to an unreasonable, unjustified and thus intolerable risk of loss to both life and property;
WHEREAS, the Otero County Commissioners have further determined that it is a fundamental principal found in all free societies, of which the United States is presumed to be one, that the freedom to exercise any right is conditioned upon, subject to and limited by the fulfillment of the obligations created by certain duties placed upon the holder of the right by that society, whether the holder of the right be an individual or a governmental body;
WHEREAS, the Otero County Commissioners have further determined that it is a fundamental principal under the laws of this society that the failure to fulfill the obligations created by a duty from which a right springs constitutes grounds for the forfeiture of that right;
WHEREAS, the Otero County Commissioners have further determined that a basic obligation of government at any level created by its duty to protect and safeguard the lives and property of its citizens from unreasonable risk of harm created by that government absent the existence of a compelling justification for subjecting its citizens to that risk;
WHEREAS, the Otero County Commissioners have further determined that, because the Forest Service has implemented without any compelling justification therefore certain management policies that have created forest conditions that clearly breach said duty, during that period of time that such conflict or violation of said duty persists there must be found a concurrent forfeiture of the Forest Service’s right to govern and manage the affected National Forest(s) thereby creating a void in the authority over said lands that can be recognized by reasonable people;
WHEREAS, the Otero County Commissioners have further determined that in that void of legitimate authority so created, it is first the responsibility of the State of New Mexico and second the responsibility of the relevant county to eliminate that void by acting toward the fulfillment of said duty to its citizens by acknowledging, invoking, sanctioning and implementing the derivative fundamental rights of its citizen to self-defense, self-protection and self-help pending the occurrence of such necessary and appropriate action by the Forest Service to remove or eliminate the emergency they have created;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF OTERO COUNTY:
A STATE OF EMERGENCY IS HEREBY DECLARED BY THE OTERO COUNTY COMMISSIONERS TO EXIST AS A RESULT OF THE IMMINENT THREAT OF CATASTROPHIC FIRE DANGER IN THE LINCOLN NATIONAL FOREST LOCATED WITHIN OTERO COUNTY PURSUANT TO THE NEW MEXICO STATE CIVIL EMERGENCY PREPAREDNESS ACT. SECTION 12-10-4 et.seq.
THE GOVERNOR OF THE STATE OF NEW MEXICO IS CALLED UPON BY THE BOARD OF COUNTY COMMISSIONERS TO ACKNOWLEDGE AND ACCORDINGLY DECLARE A STATE OF EMERGENCY IN OTERO COUNTY, NEW MEXICO AS A RESULT OF THE EXISTENCE OF CATASTROPHIC FIRE DANGER IN AND ADJACENT TO THE LINCOLN NATIONAL FOREST.
THE GOVERNOR OF THE STATE OF NEW MEXICO IS CALLED UPON TO ASSIGN APPROPRIATE NEW MEXICO STATE AGENCIES AND PERSONNEL TO CONFER WITH THE OTERO COUNTY COMMISSIONERS TO DETERMINE THE CONDITIONS THAT HAVE CAUSED SAID FIRE DANGER TO EXIST IN THE LINCOLN NATIONAL FOREST AND TO ASSESS THE ACTIONS AND THE LEVEL OF TREATMENT NECESSARY AND APPROPRIATE TO ABATE, REMOVE AND REDUCE, IF NOT ELIMINATE, THE DANGER THAT THREATENS THE HOMES, DWELLINGS, BUILDINGS, ROADS, UTILITIES AND WATER AND SEWER INFRASTRUCTURE OF THOSE CITIZENS AND COMMUNITIES LOCATED WITHIN OR ADJACENT TO THE LINCOLN NATIONAL FOREST.
THE GOVERNOR OF THE STATE OF NEW MEXICO IS CALLED UPON TO CAUSE THE FINDINGS AND DETERMINATIONS OF SAID NEW MEXICO STATE AGENCIES AND PERSONNEL TO BE COMMUNICATED IN WRITING TO THE REGIONAL FORESTER FOR THE SOUTHWEST REGION OF THE FOREST SERVICE FOR THE PURPOSE OF INFORMING SAID REGIONAL FORESTER THAT IF THE FOREST SERVICE DOES NOT COMMENCE ACTION TO EFFECT SUCH REMEDIAL ACTIONS AND TREATMENTS SO COMMUNICATED BY THE GOVERNOR WITHIN SIXTY (60) DAYS FROM THE DATE SET FORTH ON THE GOVERNOR’S COMMUNICATION TO THE REGIONAL FORESTER THAT THE IMPLEMENTATION OF SAID ACTIONS AND REMEDIAL MEASURE SHALL BE UNDERTAKEN BY THE STATE TO PROTECT THE LIVES AND PROPERTY OF ITS CITIZENS.
IN THE EVENT THAT NO ACTION IS TAKEN BY THE FOREST SERVICE WITHIN THE SIXTY (60) DAY PERIOD SET BY THE GOVERNOR, THE GOVERNOR OF THE STATE OF NEW MEXICO IS CALLED UPON TO ASSIGN AND AUTHORIZE SAID NEW MEXICO STATE AGENCIES AND PERSONNEL TO TAKE SUCH ACTIONS AS ARE OR MAY BE NECESSARY AND APPROPRIATE TO ABATE, REMOVE AND REDUCE, IF NOT ELIMINATE, THE PRESENT DANGER THAT THREATENS THE HOMES, DWELLINGS, BUILDINGS, ROADS, UTILITIES AND WATER AND SEWER INFRASTRUCTURE OF THE CITIZENS AND COMMUNITIES LOCATED WITHIN OR ADJACENT TO THE LINCOLN NATIONAL FOREST.
IN THE EVENT THAT NO ACTION IS TAKEN BY THE GOVERNOR IN RESPONSE TO THESE RESOLUTIONS, OTERO COUNTY HEREBY DECLARES THAT IT WILL TAKE SUCH ACTION AS IS OR MAY BE NECESSARY TO ELIMINATE THE CONDITIONS IN THE LINCOLN NATIONAL FOREST THAT HAVE CAUSED THE STATE OF EMERGENCY HEREBY DECLARED FOR THE PURPOSE OF PROTECTING THE LIVES AND PROPERTY OF ITS CITIZENS.
THE GOVERNOR OF THE STATE OF NEW MEXICO IS CALLED UPON TO EXERCISE HIS DISCRETION TO COMMUNICATE THESE RESOLUTIONS OF OTERO COUNTY TO THE GOVERNORS OF OTHER WESTERN STATES WHOSE CITIZENS AND COMMUNITIES HAVE BEEN SUBJECTED TO A SIMILAR UNREASONABLE AND UNJUSTIFIED RISK OF CATASTROPHIC FIRE BY CONDITIONS SIMILAR TO THOSE REFERRED TO ABOVE ON NATIONAL FORESTS LOCATED WITHIN THEIR STATES.
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© CLIFFORD C. NICHOLS October, 2018 — Clifford C. Nichols is an attorney licensed to practice law in both California and New Mexico. A former research associate of The Heritage Foundation, he graduated from UCLA, summa cum laude, with a degree in Economics and became a member of the Phi Beta Kappa society. He received his Juris Doctorate degree, cum laude, at Northwestern Pritzker University School of Law where he was a member of the Board of Editors of the Law Review. Comments regarding this editorial may be directed to firstname.lastname@example.org.