Precedents rut battle over county road jurisdiction

Claiming county jurisdiction over U.S. Forest Service and BLM roads may not be as simple as writing up a resolution saying it is so, according to a legal report presented to the Montezuma County commission.

In June, the commission began researching the possibility of gaining control over, and keeping open, roads on federal lands for the legal purpose of upholding "public health and safety."

Planning commission member and public-access advocate Dennis Atwater introduced a proposed resolution that would make it a misdemeanor to place a gate or impediment blocking any road within the county, including those on forest service and BLM lands.

Structures blocking the road would have to be removed within 30 days, and the sheriff would enforce public access.

But recent efforts to claim jurisdiction over federal lands in New Mexico and Utah are not going well, reported county attorney John Baxter.

In Otero County, N.M., officials are fighting for local authority to conduct tree-thinning operations on federal lands to mitigate wildfire impacts.

But the effort is running up against the Supremacy Clause of the U.S. Constitution, Baxter explained, which mandates federal laws take precedence over state laws when there is a conflict over jurisdiction. Another drawback: The losing party may be required to pay court fees for the winning side.

"It is not doing so well in court. My guess is the federal government will win the attorney fees in the Otero case," Baxter said.

In Utah, the legislature passed the so-called "sheriff's bill" aimed at curtailing enforcement powers of BLM and Forest Service rangers on federal lands.

HB155, which was backed by the Utah Sheriff's Association, charges federal rangers with "impersonating a peace officer" if they ticket or detain citizens for certain offenses such as fishing without a license or speeding on federal lands.

After the law was passed, the U.S. Justice Department successfully argued the measure was unconstitutional. U.S. District Judge David Nuffer ruled the law violated the U.S. Constitution's Supremacy Clause, and issued an injunction to block the new law.

On July 17, the law was repealed by the Utah legislature to avoid a lengthy and costly legal battle likely ending in defeat.

'Similar issues'

Baxter said Utah's failed law is different than Montezuma County's resolution, which focuses on protecting public access over roads crossing federal lands.

But, he said, the county could "run into similar issues, if, in our resolution, (Sheriff) Spruell can ticket people on Forest Service roads."

Montezuma County's proposed law asserting jurisdiction over federal public land roads is modeled after a similar law passed in Apache County, Ariz. There, the board of supervisors declared "exclusive authority" over certain routes of travel located on BLM and Forest Service roads within the county.

The controversy was in part a misunderstanding, according to officials with the Apache-Sitgreaves National Forest.

Following the Wallow Fire, it was determined that there was a high potential for road washouts on certain forest service roads, causing a safety hazard. Forest staff installed gates to close the roads in case of mudslides, but they remained open otherwise, according to Apache-Sitgreaves agency correspondence.

Local residents misinterpreted the closures as permanent under a pending travel management plan for the forest. But the TMP does not propose closing the main forest roads and they will remain open, except during emergency flooding events.

No attempts have been made to enforce the Apache County resolution, and the controversy spurred more cooperation between the county and forest officials.

Montezuma County commissioner Keenan Ertel recently visited Apache County on a fact-finding mission regarding that county's efforts to protect public access on federal lands. He reported that each situation is different and cautioned that the board not rush to pass a resolution that could be challenged in court.

"I'm hesitant to commit to forcing forward a resolution that might be overwhelming if it goes to court," Ertel said. "We've heard Otero County's resolution was litigated and looks like it will get thrown out; Utah backed out of theirs. I am reticent about spending public tax dollars in court."

He suggested inviting Apache County officials to have a local public forum on the issue here and discuss their road resolution with the community.

Legal precedents

A second draft of Montezuma County's public road access resolution includes some changes, including requiring forest officials to get permission from the county to close a road, but not the sheriff's permission as well. It also gives forest officials 60 days to open a road they closed, instead of 30 days.

The new draft still asserts that the county sheriff can remove gates to ensure public access.

The commissioners emphasized that their resolution is specific to preserving public access on federal roads, making it legally unique. But they were not willing to commit just yet to a potentially expensive legal fight with the federal government.

"I think we need time to make sure our resolution is right, and that we further understand the consequences," commented commissioner Larry Don Suckla.

During the 1990s, a similar fight for local control of federal lands - dubbed the "county supremacy" movement - also lost in federal court. A highlight of the protest occurred when a Nye County, Nev., commissioner bulldozed a forest service road after the county passed a law declaring the U.S. did not own the land.

In his decision, federal judge Lloyd D. George cited legal precedents for federal ownership of public lands dating back to 1846 when Mexico ceded the Southwest to the U.S.

"The United States owns and has the power and authority to manage and administer unappropriated public lands and National Forest System lands," George wrote.