Montana Bill to Reduce Wildfire Risk
Sen. Dave Lewis, R-Helena, representing Senate District 42 in the Montana Legislature, has introduced Senate Bill 34 that extends the authority of counties to reduce fire hazards on USFS lands.
SB 34 is [here]. It passed the Montana State Senate last Saturday by a vote of 42 to 7. Now it remains for the Montana House and Governor Gov. Brian Schweitzer to sign on.
SB 34 adds to the “Community Decay” provisions of state law the words “the natural accumulation of fuel, INCLUDING NOXIOUS WEEDS, for fire that poses a threat to public health or safety.”
The bill would allow allow officers and employees of the county to enter upon Federal property for the specific purpose of abating the fire hazard and to assess the Feds for the actual costs for the abatement.
Sen. Lewis authored a guest column at Headwaters News [here] that explains SB 34:
Montana bill would reduce wildfire risk
By Sen. Dave Lewis, Guest Column, Headwaters News, Jan 26, 2009
What would Thomas Jefferson do?
I proposed a bill to the Montana Interim Fire Committee last summer. The concept was, effectively, if a federal agency let fuel build up on its land to the point that such buildup threatened private property owners then Montana counties could step in and reduce those fuels.
The point of the legislation is that since the Forest Service is hampered by lawsuits every time a timber sale is proposed, county governments would have the ability to step in and reduce the risk, which might enable the work to get done. The committee recommended the bill and I presented in on the floor of the state Senate last week. It passed 42-7 on Saturday.
I was pleased that senators understood the risk to the people of Montana brought on by the build-up of fuel in the national forests. The bill exempted private land used for agricultural purposes, which would be any land used to grow trees or grass for grazing. I believe that it is clear that only federal land is affected. It was a good long debate with lots of good questions.
The biggest problem with the bill is that it may violate the federal Constitution. My theory is that if you allow yourself to be slowed down by something like that, then you will never get anything done.
The Supremacy Clause of the federal Constitution that says state and local governments have no say about how federal lands are managed. That provision has never been tested, to my knowledge, on the basis that the buildup of fuel on federal lands puts the property and lives of the neighboring landowners at risk. I think that it is time to test it. Sometimes you have to keep driving until you hear glass breaking!
I thought long and hard about challenging the U.S. Constitution. However, I kept coming back to the people who drafted it 250 years ago. I cannot imagine that Thomas Jefferson and the other people who developed this language ever imagined that we could have situation where citizens of this state would have to literally run for their lives in front of out-of-control fires.
Consider the impact of millions of acres of federal land being devastated by the beetle epidemic we are now experiencing. There will be tons of fuel added to every acre of our forests. This will give us fires of an intensity that we can not even imagine. There is a potential for a fire like the 1910 wildfire that burned most of North Idaho and Western Montana. We have a lot more people and development in this area than we had in 1910.
So when you see that your senator sponsored a bill that may violate the federal Constitution, please know that he can sleep at night because he knows that Thomas Jefferson did not intend to put our lives at risk..
Now we just have to convince the House, Gov. Brian Schweitzer, and the federal courts. If we do not try, then we are going to regret it. Those fires are coming!
In related news, a bipartisan group of senators led by OR Sen. Ron Wyden are urging that the stimulus package include $1.52 billion in funding to log and thin national forests to reduce the potential for huge fires. See [here].
by John M.
Of course, many of us Californians pride ourselves in our progressive way of thinking and our unquestioned tolerance of all things for all things. We embrace fire except when it comes too close to our urban areas and celebrity homes. We also are caring of all living things, whether they be plant or wild animal, because if we don’t look out for these esteemed sentient beings, who will? Even fire is seemingly a living entity, and we shouldn’t be suppressing its rebirthing qualities and benevolent impacts of joy and beauty…
Okay… Okay… Enough silly sarcasm that is usually a feature of the ultra left. Some feel that thick smoke and scorching flames are a penance we have to pay in order to repent for the eco-sins of our forefathers and evil forester/murderers.
To me, it looks like Montanans have been forced into a corner by the economic insolvency of their fire protection agencies and their state budgets in general. While a lower court judge may uphold such a bill (risking his job in the process), higher court judges won’t stand for those pesky states threatening the very essence of the Constitution (as they see it), even when citizens are put in harm’s way.
Montana needs to make their fight as public and as emotional as possible, and to be heard across the nation. After all, it IS their last resort!
Larry — sarcasm does not belong to any one political persuasion. See the next post, for example.
by Mary Macnab
We really do need a Constitutional expert here.
As with so many interpretations of Federal v. State jurisdiction, there just could possibly have been misinterpretation (inserted) into discussion of the true meaning of the Supremacy Clause of the Constitution by power/control hungry entities within the federal government. On further investigation, it seems that the Supremacy Clause allows federal law to supersede State law only when such federal code or laws pass the test of Constitutionality.
Further investigation would find that many “laws” in the U.S. Code such as the ESA do not recognize even the most basic Constitutionally-protected individual rights. “No person… shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation” (Bill of Rights).
Likewise the states’ authority is supreme over any federal law that does not pass the test of being confined to the very limited scope of authority granted the federal government by the Constitution.
Excerpt from the “Citizens Rule Book”:
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for a law which violates the Constitution to be valid…
All laws which are repugnant to the Constitution are null and void.” — Marbury v Madison
Where rights are secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.” — Miranda v Arizona.”
An unconstitutional act is not law; it confers no rights; imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed. — Norton v Shelby County
How many modern international treaties pass the test of Constitutionality?
The following legal interpretations support the need for Constitutional compliance as a condition of authority:
16 American Jurisprudence 2d, Sovereignty of States, §281 [Legal encyclopedia]:
The original thirteen states existed prior to the adoption of the Federal Constitution and before that time possessed all the attributes of sovereignty. All these attributes except those surrendered by the formation of the Constitution and the amendments thereto have been retained. But the sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution, and it is subject to the restraints and limitations of the Constitution.
Another interpretation here:
The Supremacy Clause as a Constraint on Federal Power
Bradford R. Clark, George Washington University Law School
George Washington University Law Review, Vol. 71
Abstract:
Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress’ enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives.
Contrary to this position, there is an express textual basis for judicial review of federal statutes alleged to exceed Congress’ enumerated powers. The Supremacy Clause establishes a rule of decision for courts adjudicating the rights and duties of parties under both state and federal law. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. The Clause, in turn, designates as the supreme Law of the Land only those Laws of the United States… made in Pursuance of the Constitution.
If a federal statute satisfies this condition, courts must apply the statute notwithstanding contrary state law. If the federal statute fails this condition, however, it does not qualify as the supreme Law of the Land and courts remain free to apply state law. Thus, in order to apply the Supremacy Clause, courts must necessarily consider and resolve challenges to the constitutionality of federal statutes.
The text, history, and structure of the Constitution confirm that the Supremacy Clause authorizes judicial review of federal statutes alleged to exceed the scope of federal power. The Founders considered three alternative mechanisms for resolving conflicts between state and federal law: coercive military force, congressional power to negate state laws, and adjudication under the Supremacy Clause. The decision to enlist courts — rather than Congress or the President — indicates that the Founders preferred to treat conflicts between state and federal law as judicial, rather than political questions. In addition, by expressly conditioning the supremacy of federal statutes on their constitutionality, the Supremacy Clause reassured the states that courts (both federal and state) would keep the federal government within the bounds of its assigned powers.
Thus, in effect, the Clause reserves all remaining powers to the states, or to the people. These conclusions find support in the Supreme Court’s early invocation of the Supremacy Clause to explain judicial review of federal statutes in cases like McCulloch v. Maryland and Gibbons v. Ogden.
In Arizona none of our “National” Forests have ever received any cession of legislative jurisdiction from the state government to the federal government, an absolute (Constitutional) prerequisite to any transfer of jurisdiction in such a case to the federal government. These lands are in truth “split estate lands” with the State retaining all authority over the waters and water law, the appropriation of water, and the land serviced by that water (in the arid West land is useless without water). Once appropriated by beneficial use, these lands — including grazing allotments, waters, and the forage serviced by the water — became subject to private property rights.
Is it lawful for the Forest Service to have a policy that burns up private property and state watersheds?
by Forrest Grump
This bill, if passed, could also be applied to private landowners who have a doghair jungle. So I’m not sure what Lewis is trying to accomplish here.
Not that I oppose doghair cleanout. But this says, hey, we can slick your ground off and bill you. Doesn’t say WHO.
The Bill modifies an existing law to include fire hazards (on all land, including the Feds). As I understand it, the counties already have the authority to enter private property to clean up health hazards, and fire hazards are hazardous to health.
If you maintain a doghair thicket, that is no different than maintaining a warehouse full of cardboard boxes, old pallets, and oily rags. You endanger your neighbors. Private property rights do not include the right to set up meth labs, erect ramshackle buildings, or keep and maintain fire and health hazards.
The Bill extends those reasonable and rational limitations to Fed property. Which is a good thing considering that wildfires emanating from unkempt Fed land endanger and sometimes destroy whole communities.
AND, where is the “newly-empowered” EPA on this issue? Aren’t they supposed to be protecting the public from environmental damage and pollution hazards? We ALL can agree that smoke, especially from whoofoo’s, is a preventable form of pollution. I’ve even went on to an eco-website and pushed forth that idea. As yet, the eco’s choose not to address that issue.
Are you implying that the enviro political line is self-contradictory in some way?
Is it inconsistent to decry the “disappearing old-growth” and at the same time ignore catastrophic megafires that kill old-growth quite dead?
Is it somehow disingenuous to bemoan atmospheric CO2 and at the same time promote Let It Burn fires across vast landscapes?
Is there a double standard in coddling exotic predators in our midst, such as Canadian wolves, and at the same time professing to “love” the wildlife populations those wolves are decimating?
What you are saying, Larry, if I interpret it correctly, is that the enviros spew double-talk jive.
That’s a serious accusation. Could it be true?
by Mary Macnab
Congress created the “Forest Reserves” and granted the US Forest Service authority to provide a sustainable yield of timber for the communities and to increase the water flows, and nothing more. This was made clear in New Mexico v. U.S. in 1979. This is a Supreme Court case that no one seems to want to talk about.
The water rights are appropriated under state law, and other property rights and interests of the forests are under state jurisdiction unless that jurisdiction has officially been ceded to, or purchased by, the federal government from the state (U.S.Constitution, Article I, Sec. 8., Clause 17). I am pretty sure that there are “cessionless” lands being called “federal lands” or “lands owned by the federal government” in National Forests all over the West.
A recent response to a Freedom of Information request to the DOI in Washington D.C. revealed that there was no “federal land” in all of Greenlee County, Arizona, a goodly portion of the Apache-Sitgreaves National Forest. There are no historical cessions of legislative jurisdiction from the state to the feds for any of the National Forests in Arizona in the entire historic record of state legislation. So where is the ownership? Where is their jurisdiction?
The Supreme Court defined public lands in Bardon v Northern Pac. R. Co. 12 S.C. 536, 539 (1892), cited 133 times and never overturned in whole or in part. It was last cited in Watt v Western Nuclear, Inc., 462 U.S. 36 (1983). The U.S. Supreme Court said: “It is well settled that all land to which any claims or rights of others have attached does not fall within the designation of public land.” (1892).
Split-estate property rights are lawfully under state jurisdiction. The Supremacy Clause (merely) nullifies all treaties and federal legislation not justified within the limited powers granted the federal government by the Constitution
This is important because state forestry departments may be better stewards of the land than the feds have been.
The Supremacy Clause negates unlawful (unconstitutional) legislation and jurisdiction. It does not, as land agencies would like us to fool us into believing, give federal laws and federal treaties authority over states, regardless of the constitutionality of those laws and treaties. The Supremacy Clause mandates that the Constitution is the Supreme Law of the Land, not the Federal Government or its regulations.
by YPmule
As I was walking the dog this morning, I was noticing a bunch of little bull pines across the road from the old school. We can’t thin them because the trees are on the “forest” (Payette). Yet they are clearly a ladder fuel. We can’t legally cut a tree down in the forest without a wood permit, and of course green trees are a no-no. I can see why, otherwise some folks would be cutting down the old growth trees. Yet it is frustrating to have your hands tied if you wish to thin next to your own property.
Then again I also get aggravated with folks that won’t thin their own property and thus endanger their neighbors.
So far as I know the Montana Legislature is the only state body to commit time and energy to the wildfire issue. However, the concerns about run-a-muck wildfire are growing in Northern California, Nevada, Idaho and Eastern Oregon. I see indicators that one more major run-a-muck fire and the fire issue will become a major political issue. This is good and bad. It is good to finally get some serious political attention focused on burning the West. It is bad because once the issue gets into the political meat grinder, all rational options for fixing the problem will disappear.
We do live in interesting times.