Wise-use ordinances suffer legal setback

 

In a decision that environmentalists hope will reverberate throughout the West, an Idaho district judge ruled that a county wise-use law is unconstitutional.

Judge 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."

Scott Reed, 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 secretary.

"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."

Frank 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," he says.

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."

Falen 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.

Falen 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.

Bonners 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."

Boundary 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 future.

The writer is HCN assistant editor.

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