In a decision that environmentalists hope will reverberate throughout the West, an Idaho district judge ruled that a county wise-use law is unconstitutional.
James Michaud said Jan. 28 that Boundary County's land-use plan
asserting local control over all decisions affecting federal and
state lands in the county violates both the Idaho and U.S.
constitutions (HCN, 5/22/93).
The ordinance is
based on a Catron County, N.M., model that has been adopted by more
than 40 counties in the West (HCN, 2/24/92).
"This decision shows that it's a waste of any
county's time and money to pass this kind of ordinance," says Kathy
Kilmer, a staffer for The Wilderness Society. "They're really not
worth the paper they're written on."
a Coeur d'Alene attorney who represented local environmentalists
challenging the ordinance, was not surprised by the decision. "The
only people who think this is valid are the people who wrote it."
Boundary County commissioners say they will
appeal the decision to the state Supreme Court. "We've received a
lot of support both locally and throughout the Pacific Northwest to
appeal," says Murreleen Skeen, county commission
"As far as I'm concerned, they can
appeal it to the U.S. Supreme Court," says Reed. "The higher they
run it up the flagpole, the better."
Falen, a Cheyenne, Wyo., attorney and husband of Karen Budd-Falen,
the attorney who drafted the original Catron County ordinance, says
the ruling is only a local one. "We're not that stressed over it,"
Falen says the judge ignored the
county's argument that federal law requires agencies to consult
with counties before making decisions that affect the people who
live there. "The ordinances are a way for local people to get input
into the system," he says.
Jerry Pavia, one of
the plaintiffs and founder of the 18-year-old environmental group
Boundary Backpackers, says county officials have always had the
ability to participate in federal decisions. "I've been going to
Forest Service meetings for 16 years," he says, "but I've never
seen our county commissioners there once."
says Boundary County could reword its ordinance to make it more
palatable to the courts. By including the phrase "as pursuant to
federal laws," he says, the county could make it plain that it does
not intend to take over decision-making on federal lands. "In the
final say, it's the federal government's decision," he admits.
Reed says counties now passing ordinances are
heeding Falen's advice. Instead of claiming the power to override
federal decisions, modified ordinances now say "gee whiz, consult
with us," something which federal law already requires. "We've
blunted the whole process," he says.
believes county ordinances are effective, no matter what legal
caveats they contain. In most counties that have passed such an
ordinance, he says, the Forest Service and Bureau of Land
Management are working more cooperatively with county commissions.
Meanwhile, Boundary County tackled more
controversy when it passed an ordinance in December that makes all
federal logging, mining and homestead roads and right-of-ways
county property. Based on an 1866 mining law, the ordinance could
be interpreted as preventing the Forest Service from closing roads
with locked gates to protect grizzly bear habitat and other natural
resources, reports the Associated Press.
Ferry District Ranger Debbie Norton says she was worried the
commissioners might send out a road crew to pry open one of the 135
gates installed in her district to protect habitat for grizzly bear
and caribou. County commissioners have backed off, she says,
because they understand the Forest Service could cancel timber
sales in those areas. Forest Service attorneys are drafting a
letter to the commissioners telling them the ordinance does not
apply to national forest lands, she adds.
Although ranger Norton believes the Boundary
County commissioners are legally off-base, she says she understands
their motivation. "The closing of roads hits everyone in the
community," she says. "It hits mom and pop who just want to to go
pick berries in their favorite place."
County is a place where people "are used to having access to what
they want to have access to," Norton says. But, she says, with the
Forest Service implementing stricter and stricter regulations to
protect endangered species like the grizzly bear, restrictions on
the Panhandle National Forest will only tighten in the
The writer is HCN