U.S. District Court to Hear Oral Arguments in Defense of New Mexico's Senate Bill 1


The letters below were directed to the attorney appointed by Otero County, New Mexico, to present oral arguments before the U.S. Court of Appeals for the 10th Circuit in defense of New Mexico's Senate Bill 1. sometime in the week of September 12, 2016.


September 10, 2016

Dear Mr. A. Blair Dunn:

Thank you for your email yesterday informing me that you will be appearing next week before the United States Court of Appeals for the Tenth Circuit to present your oral arguments in defense of NM 4-36-11 — commonly known as New Mexico’s Senate Bill 1.

Thank you also for attaching to that email a copy of your Opening Brief in this matter that was evidently filed by you on January 19, 2016 on behalf of Otero County in Appellate Case No. 15-2210 (the "Brief").

That said, I need to confess that your email left me a bit confused as to your reason for sending me the Brief at this late date, as your email failed to state a reason. Nevertheless, I am pleased you did, and am able to report that I did read it last night. In response, allow me to offer to you my initial thoughts, solicited or not, which are as follows.

First, as presented, I am left with the belief that your arguments to the Court of Appeals may not be likely to prevail. Thus, in my opinion a reversal of the District Court’s decision might not occur at this stage of the litigation. Be clear, however, I am hopeful that you will prove me wrong. I’m just saying that I would have preferred you to take a different approach that I feel strongly might have been more likely to have put the court in a position of having no alternative available other than to rule in your favor.

Distilled to its essence, that approach would have been based on the following conceivably unarguable proposition — the right of a sovereign (i.e. the federal government) to rule must be found by a court to be inseparable from that sovereign’s fulfillment of its most basic duty to protect the citizens it rules from foreseeable death or harm — and whenever a sovereignknowingly fails to perform that fundamental duty without having to offer any sufficient countervailing substantive justification, it must be found to have forfeited its right to rule to a subordinate sovereign (i.e. the state) in the event that subordinate has expressly requested the federal government’s permission to assume that outstanding unfulfilled obligation and actually take the actions needed to protect its citizens.

It is against the backdrop of this proposition that I believe one could successfully argue that the District Court’s arbitrary declaration of plenary federal powers derived from the Property Clause, and in complete disregard of the 10th Amendment, can only lead to an absurd and illogical conclusion in the case of the catastrophic wildfire risks that Senate Bill 1 was created to remedy — i.e. if the District Court’s ruling is not reversed, the Court of Appeals will be affirming the indefensible proposition that the lives of a state’s citizens can be arbitrarily and foreseeably put at risk by the federal government without justification by virtue of the Property Clause’s inexplicable supremacy over the provisions of the10th Amendment, and that our Constitution thereby renders that state absolutely powerless to do anything to prevent that foreseeable harm to its citizens whenever the federal government arbitrarily and capriciously may decide otherwise.

Of course, the challenge you face as the county’s attorney is to posture the case in such a way that it compels the court to want to do whatever may be necessary to avoid their having to take this inane position — especially should you be able to subtly put them on notice of the fact that you intend to do everything possible to make sure their decision will be reviewed one day by the Supreme Court.

Mr. Dunn, I hope these thoughts will be of some assistance to you next week and sincerely wish for you the very best outcome. However, should the Court of Appeals rule against you, I would also like to go on the record now to encourage both you and the Otero County Commissioners to not surrender in defeat to the Forest Service at this late stage in the game. On the contrary, I would urge all of you to be willing to complete the last lap of this race the federal government started so many years ago by committing now to continue on to the Supreme Court, if necessary. Of course, if that were to occur, please allow me to renew my offer to said Commissioners to be of assistance.

You may not be aware of the fact that, until I received your email yesterday, I had no knowledge of the facts that the Commissioners of Otero County had actually decided to pursue this appeal, or that your Brief had ever been filed. My last involvement in this matter occurred almost a year ago when I did become aware of the fact that the Commissioners were planning to vote on whether or not to file an appeal. At that time I sent each of the Commissioners and the Otero County attorney, Lisa Jenkins, Esq., a letter, dated November 20, 2015, in which I clearly expressed my continued interest in Senate Bill 1 and my willingness to consult with them or their attorney about the legal theories I consider to this very day are important to a successful appeal. See, Letter attached hereto. However, having received no response from any of them, I simply assumed they had voted to not pursue the appeal and I let it go. Now knowing otherwise, however, please feel free to contact me after the Court of Appeals renders its decision, if and when you think it appropriate. I would be honored if I were invited to join these efforts going forward and, of course, am retained for that purpose.

Best regards,

Clifford C. Nichols, Esq.
Attorney at Law


September 12, 2016

Dear Mr. Dunn:

A few last thoughts you may wish to consider prior to the presentation of your oral arguments this week before the U.S. Court of Appeals on Senate Bill 1.

I would urge you to read the New Mexico's Petition to Ann Veneman, Secretary of Agriculture delivered back in 2003.

The text of the Petition sets out more fully the arguments I summarized in my email to you of two days ago, Saturday. Also, if you are somehow able to do so at oral argument, it certainly would not hurt if the Appellate Court could be made to consider the Petition together with all of the New Mexico legislators and dignitaries who endorsed it. It could give them a sense of the consensus of opinion in New Mexico and just might persuade them to rule in New Mexico's favor.

See the Petition, together with the Editor's Note and Cover Letter to Ann Veneman here.

See also the attached editorial I wrote back then regarding the Petition. It may help as well. At least that is my hope.

Again, you have my very best wishes for success this week. Should you care to, please let me know how it goes. Thanks.

Clifford C. Nichols, Esq.
Attorney at Law