Published by Townhall.com, November 14, 2018
Our Government has Allowed Catastrophic Wildfires to Threaten its Citizens
© 2018 CLIFFORD C. NICHOLS
In 2016, California watched the Blue Cut Fire quickly become a massive inferno. Reportedly, it burned with an intensity greater than many firefighters had ever seen. At the time, one fire commander told the Associated Press, “In my 40 years of fighting fires, I’ve never seen fire behavior so extreme.”
In 2017, the Tubbs Fire was even more destructive. By the time it was contained, that fire alone burned an estimated 36,810 acres and killed 22 people.
Today, in 2018, 19 fires are currently raging throughout the state. And among these, just one alone — the Camp Fire — has now been recognized as the largest such catastrophe to ever occur in the state’s history. In all, over 45 people have died throughout the state so far, over 200 people remain unaccounted for, and over 6,700 homes and other structures have been destroyed. And that’s before mentioning all the celebrity homes that have been burned in Malibu.
This is a devastating trend that must be reversed, not only in California but throughout the Western states that have been made to suffer the consequences of such catastrophic wildfires due to mismanagement.
However, to do so will require both our government officials and the public whom they serve to jointly acknowledge the existence of not one — or even two — but three elephants in the room:
1. Most catastrophic wildfires in the Western states, such as we are witnessing today in California, occur within or adjacent to the borders of lands controlled and managed by either the state or the federal government;
2. Environmentalist litigation coupled with concurrent mismanagement by government officials have caused unreasonably excessive forest and brush overgrowth and deadfall to accumulate in recent decades that results in many fires — once started — becoming both explosive and virtually unstoppable; and
3. The cause of a catastrophic fire’s ignition — whether it be an untended campfire, a match, a cigarette, lightning or even “global warming” — is not nearly as important as the need to remove the inexcusably negligent accumulation of combustible fuel load that cause that fire, once ignited, to explode.
A match can be used to light either a candle or the fuse to a keg of dynamite. And, in the case of fires that are ignited on our public lands, which it shall be is mostly within the control of the bureaucrats working in our government.
In short, to blame the fires in California on the source of a fire’s ignition are attempts by politicians and bureaucrats to mislead the public’s attention away from their culpability for their errant policies that have created the conditions that enable these catastrophes to occur.
In the summer of 2016, Donald Trump received a standing ovation at the Republican National Convention when he proclaimed:
"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."
Nearly 15 years before he made this declaration, a courageous group of County Commissioners in New Mexico actually attempted to apply this very principle to protect the lives and property of its citizens from unnecessary and unjustifiable exposure to catastrophic fires.
In 2001, no longer willing to ignore the three elephants in the room, they passed what has come to be known in that part of the country as The Otero County Resolution.
Reduced to its essence, it provided:
If one sovereign — whether it be either the federal or state government — is unwilling to fulfill its most basic duty to protect the lives and property of its citizens from catastrophic fires, it should step aside and let another sovereign that is willing to protect those same citizens — like the County government — to remove from public lands such conditions within their jurisdiction that could foreseeably cause such fires.
The following year in 2002, a modified and abridged version of their Resolution was passed by the State’s legislature, enacted into state law by then Governor Gary Johnson and came to be known as Senate Bill 1. Then for the following 9 years, it lay dormant.
It wasn’t until 2011 that the Board of the Otero County Commissioners finally notified the Forest Service of their intent pursuant to Senate Bill 1 to take the actions they deemed necessary to clear the overgrowth and deadfall in forests adjacent to several communities exposed to the danger of a catastrophic fire.
The Forest Service — without giving any good reason — did not approve the measures proposed by Otero County. And when the Board then indicated that it was going to execute their plan anyway, the Forest Service filed suit in 2012 to stop them in federal court.
In other words, the Forest Service wasn’t going to correct the forest conditions to prevent future catastrophic fires, but they weren’t going to allow Otero County to do it either.
In the end — to the shock of very few — the federal courts sided with the federal government.
On December 8, 2016, in United States of America v. Board of County Commissioners of the County of Otero, the United States Court of Appeals for the Tenth Circuit prohibited Otero County from protecting its citizens based on its finding that Senate Bill 1 violated the Property Clause of the Constitution. U.S. Const. art. IV, § 3, cl. 2.
This is yet another testament to the fact that laws and precedent can be interpreted and manipulated to obtain any ends a court may desire, even if logic and reason are casualties to the process.
Those people in California who have lost their homes or, worse yet, the life of a loved one, due to a recent fire might now be in a better position today to appreciate Otero County’s past efforts to protect its citizens from catastrophic fires than were appellate judges sitting far from the danger.
Now, perhaps these people who have experienced such a fire may be even willing to pick up the gauntlet first laid down by Otero County and pursue a similar remedy in order to prevent such fires as they have now experienced from occurring in the future.
Who knows? With enough celebrity support from California, something like Senate Bill 1 might even be passed as an Act of Congress, and thus, remove the “Property Clause” as an impediment to better future forest maintenance policies.
Moreover, they might just find that their hopes for success on this issue could be even brighter today than when Otero County attempted to accomplish this feat by virtue of the fact that they now have a President who appears to be much more sympathetic to this cause than any of his predecessors appear to have been.
If for no other reason than that, perhaps the people of California should strike now while the iron is hot. No pun intended.
What say you, Malibu?
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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.