NEW MEXICO CATASTROPHIC WILDFIRE PETITION TO U.S. SECRETARY OF AGRICULTURE

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[EDITOR'S NOTE:  In 2002–03, Mr. Nichols also drafted and delivered a Petition to the U.S. Secretary of Agriculture Ann Veneman, in which over one hundred New Mexico officials and dignitaries demanded that the U.S. Forest Service: (i) remove the forest overgrowth on federal lands causing wildfires to become catastrophic; or (ii) permit the state to do it; or (iii) assume full liability for all future injuries and damages to citizens of New Mexico resulting from the Forest Service's negligent inaction.  

The Petition is set forth in full, following the cover letter to Ms. Veneman immediately following this note.

On January 6, 2003 the Petition was printed in its entirety in The Washington Times, together with the names of all the New Mexico officials and dignitaries who had endorsed it.

On that same day, one of those New Mexico dignitaries was in Washington, D.C. for meetings with, among others, the Chief of the US. Forest Service. Afterwards, he wrote Mr. Nichols to say:

"What a remarkable coincidence that [the Petition] came out the day we arrived in D.C. I can guarantee the entire hill was a-buzz over it. ... You could almost hear the whispers of conversations as we moved through rooms being tracked by eyes, "They are from New Mexico and signers of the Petition." It allowed us to explain our problems and point out the benefits of what was done. Not one person went away with a negative attitude. Thanks for a very memorable trip to D.C."

Several months later President Bush signed into law the Healthy Forests Restoration Act of 2003.  Coincidence? Perhaps ... but then again ... perhaps not. Consider how President Bush's Act's stated purpose almost exactly mirrors that of the Petition:

"To improve the capacity of the Secretary of Agriculture [Ann Veneman] ... to conduct hazardous fuels reduction projects on National Forest System lands ... aimed at protecting communities, watersheds, and certain other at-risk lands from catastrophic wildfire, [and] to enhance efforts to protect watersheds ..."

Soon after enactment of the President's Forest Restoration Act, THE SIERRA CLUB, inter alia, brought suit in the 9th Circuit and regretfully stopped its full implementation.

Thank you, 9th Circuit and SIERRA CLUB ... Because of you, catastrophic wildfires continue throughout the West to this day.]

COVER LETTER TO SECRETARY ANN VENEMAN, SECRETARY OF AGRICULTURE

November 1, 2002

CERTIFIED, RETURN RECEIPT REQUESTED

The Honorable Ann M. Veneman
Secretary of Agriculture
United States Department of Agriculture
Whitten Building, Suite 200A
1400 Independence Avenue, SW
Washington, D.C. 20250

RE:  Petition to Secretary of Agriculture Ann M. Veneman from Elected Officials and Concerned Citizens of the State of New Mexico

Dear Secretary Veneman:

Enclosed herewith is a Petition directed to your attention from over 100 elected officials and other concerned citizens of New Mexico. The Petition is submitted under the authority of the second clause of the First Amendment to the United States Constitution.

In summary, the Petition pertains to an existent state of emergency caused by excessive fuel load conditions in federal forests located in New Mexico, which was declared by Governor Gary Johnson during the 2001 legislative session. These forest overgrowth conditions have simultaneously exposed our citizens to risk of loss to life and property from catastrophic fires and impaired a significant part of this state’s critical watersheds upon which our state’s water supplies are dependent. 

The Petition requests that you exercise your lawful discretion to implement one of two alternatives for the purpose of eliminating the declared state of emergency or, in the alternative, acknowledge the responsibility of the federal government for consequent damages.

Thank you for your attention to the foregoing and to the enclosed Petition. Please do not hesitate to contact my office at your convenience if you have any questions or comments. 

Sincerely,

CLIFFORD C. NICHOLS
Attorney at Law

PETITION TO SECRETARY ANN M. VENEMAN, UNITED STATES DEPARTMENT OF AGRICULTURE

November 1, 2002

I. NOTICE OF A STATE OF EMERGENCY CAUSED BY EXCESSIVE FUEL LOAD CONDITIONS EXISTENT IN THE NATIONAL FORESTS WITHIN THE STATE OF NEW MEXICO THAT UNREASONABLY THREATENS THE LIVES AND PROPERTY OF NEW MEXICO CITIZENS WITH IMMINENT DESTRUCTION FROM UNCONTROLLABLE AND/OR UNSTOPPABLE FOREST FIRES OF CATASTROPHIC MAGNITUDE AND

II. A FORMAL REQUEST BY THE UNDERSIGNED NEW MEXICO ELECTED OFFICIALS TO SECRETARY VENEMAN FOR AN IMMEDIATE TRANSFER OF LIMITED JURISDICTION TO LAWFULLY VEST THE STATE OF NEW MEXICO WITH THE POWER AND ABILITY TO REMEDY THE FOREST CONDITIONS THAT HAVE CREATED SAID STATE OF EMERGENCY

To The Honorable Secretary Veneman:

Both the United States Forest Service and the State of New Mexico have acknowledged the present extreme risk of catastrophic fires occurring in the National Forests located within the State of New Mexico on numerous occasions over the last several months. The present risk of uncontrollable and many times unstoppable forest fires in the National Forest within New Mexico poses an extreme threat to the lives and property of New Mexico citizens that not only is foreseeable and grossly unreasonable, but has risen to the level of a state of emergency.

Attempts by numerous citizens and officials of New Mexico to persuade the United States Forest Service to take actions that are necessary and appropriate to mitigate, if not eliminate, this state of emergency have been, to say the least, continuously unavailing over a period of the several years immediately preceding this year's disastrous fire season. As a direct consequence to this void of authority created by federal inaction citizens and officials in New Mexico last year called upon both the Legislature and the Governor of New Mexico to respond to the state of emergency as it existed even then. The product of these pleas was the enactment by the State of New Mexico of New Mexico Statutes Annotated §4-36-11 (commonly referred to in New Mexico and hereinafter as "Senate Bill 1", a copy of which has been attached hereto as Exhibit 1 for your convenience).

Senate Bill 1 is based on a most fundamental principle. It is the foremost obligation of any sovereign, whether it be federal, state or local, to protect the lives and property of its citizens from unreasonable risks of death, harm and/or destruction (i.e. such as may foreseeably result from unstoppable catastrophic forest fires such as those we have witnessed in just the last several months).

Senate Bill 1 then links this principle with an equally fundamental concept: i.e. if the federal government with primary responsibility to protect the lives and property of its citizens fails to fulfill its obligation to do so, it must then become the duty of the state (with an equal obligation to protect those same citizens) to step in and fill the void left by the federal government. That was the expressed purpose intended by New Mexico's enactment of Senate Bill 1.

Senate Bill 1 authorizes those county commissioners within New Mexico whose counties are exposed to the unreasonable, and yet highly foreseeable, threat of catastrophic fires on federal lands to take such actions as they may determine are or may be necessary and appropriate to eliminate the state of emergency declared by Senate Bill 1 that has been negligently allowed to persist year after year by the United States Forest Service.

Our primary mandate under Senate Bill 1 is to expedite the removal of excessive fuel load conditions from our forests that, after ignition by whatever cause, are foreseeably likely to produce fires that may quickly achieve catastrophic proportions threatening the lives and property of our citizens. However, included within this mandate are other goals, which the undersigned hereby acknowledge must also be achieved when and where possible. Expressly included among such goals are: (i) the creation and preservation of healthy New Mexico forest environments generally; and (ii) the protection of wildlife including, without limitation, endangered species and their habitats from the certain annihilation consequent to catastrophic forest fires.

This brings us to our purpose for petitioning you. To reduce, if not eliminate, the risk of future catastrophic fires in New Mexico the undersigned desire at this time to resolve any jurisdictional dispute that may arise in connection with said actions, as they will necessarily be taken on lands located largely within the National Forests in New Mexico. Therefore, we respectfully request that you exercise your discretion as authorized under 7 U.S.C. §2268 to relinquish to the State of New Mexico such limited jurisdiction over the National Forests in New Mexico as may be necessary and appropriate for the State of New Mexico to fulfill its obligation to protect the lives and property of its citizens mandated by Senate Bill 1.

For your convenience, Section 2268 of U.S.C. Title 7 provides as follows:

"Notwithstanding any other provision of law, the Secretary of Agriculture may, whenever he considers it desirable, relinquish to a State all or part of the legislative jurisdiction of the United States over lands or interests under his control in that State. Relinquishment of legislative jurisdiction under this section may be accomplished (1) by filing with the Governor of the State concerned a notice of relinquishment to take effect upon acceptance thereof, or (2) as the laws of the State may otherwise provide." (Emphasis added)

We further respectfully request that said transfer of jurisdiction by you to the State of New Mexico be effected in compliance with the provisions of New Mexico Statutes Annotated §19-2-2 and/or any such other laws of the State of New Mexico that may be determined to be applicable by the Attorney General of New Mexico.

Your timely consideration of these requests is greatly appreciated. As you know, time is of the essence. We are currently in the midst of our fire season and therefore desire to take such actions as are or may be necessary to reduce the fire risks discussed herein as soon as practicable.

As stated, what is primarily at stake is the preservation of the lives and property of New Mexico citizens. But also at stake is the preservation of New Mexico's natural treasures, including its wildlife, its endangered species and their forest habitats that will be jeopardized if actions needed to prevent future catastrophic fires is either further delayed unnecessarily or, worse yet, not taken at all.

Finally, please be advised that also at issue is the liability that may attach as a result of the decision you make. That includes the liability that we foresee must attach to those who have been given the obligation and duty to take the actions needed to avoid the future losses to life and property discussed herein but who either intentionally or negligently fail to do so or, worse yet, act to prevent such actions from being taken by those who are willing to act. That having been said, please therefore be further advised that, if the State of New Mexico is granted jurisdiction by you to effect the mandate of Senate Bill 1 on the National Forests within New Mexico, we will take such actions as are or may be necessary for the State and its respective Counties to fulfill that responsibility to the best of our ability. On the other hand, if the State is denied that jurisdiction the undersigned must conclude that the federal government will have knowingly and willingly assumed the liability for any future personal injury and/or property damage that is determined to have been caused by any catastrophic fire in National Forests within the State of New Mexico.

Thank you for your attention to the important matters set forth in this Petition.

RESPECTFULLY SUBMITTED

The Honorable Alicia Aguilar, Valencia County Commissioner
The Honorable Dennis Armijo, Luna County Commissioner
The Honorable Laurel Armijo, Socorro County Commissioner
The Honorable Marsha Atkins, New Mexico State Representative
The Honorable Helen Baca, Valencia County Commissioner
The Honorable Shirley M. Bailey, New Mexico State Senator
The Honorable Jimmy G. Barela, Guadalupe County Commissioner
The Honorable Earnest C. Becenti, Sr., McKinley County Commissioner
The Honorable Wm. Edward Boykin, New Mexico State Representative
The Honorable Emma Duran-Buck, Mora County Commissioner
The Honorable Rob Burpo, New Mexico State Representative
The Honorable Arturo S. Candeleria, Cibola County Commissioner
The Honorable Thomas P. Clark, Roosevelt County Commissioner
The Honorable Bennie Cohoe, Cibola County Commissioner
The Honorable Jimmy Craig, Chaves County Commissioner
The Honorable Gary Daves, Valencia County Commissioner
The Honorable Preston Duncan, San Juan County Commissioner
The Honorable Dianna J. Duran, New Mexico State Senator
The Honorable Paul D. Duran, Santa Fe County Commissioner
The Honorable Alice Eppers, Chaves County Commissioner
The Honorable Johnny Espinoza, Mora County Commissioner
The Honorable Jack Fortner, San Juan County Commissioner
The Honorable Marcos Gonzales, Socorro County Commissioner
The Honorable Thomas G. Gonzales, Union County Commissioner
The Honorable Pauline Gubbels, New Mexico State Representative
The Honorable Dianne Miller Hamilton, New Mexico State Representative
The Honorable George J. Hanosh, New Mexico State Representative
The Honorable Dennis Ray Harris, Jr., Socorro County Commissioner
The Honorable Manuel G. Herrera, New Mexico State Representative
The Honorable Harold E. Hobson, Chaves County Commissioner
The Honorable Allan Hurt, New Mexico State Senator
The Honorable Stuart Ingle, New Mexico State Senator
The Honorable Timothy Z. Jennings, New Mexico State Senator
The Honorable Douglas Johnston, Torrance County Commissioner
The Honorable Gin An Jue, Socorro County Commissioner
The Honorable Dona G. Irwin, New Mexico State Representative
The Honorable Carroll H. Leavell, New Mexico State Senator
The Honorable Jose J. Varela Lopez, Santa Fe County Commissioner
The Honorable Dennis Lopez, Roosevelt County Commissioner
The Honorable Patrick H. Lyons, New Mexico State Senator
The Honorable Paul Madrid, Jr., Guadalupe County Commissioner
The Honorable Terry T. Marquardt, New Mexico State Representative
The Honorable Leo Martinez, Lincoln County Commissioner
The Honorable David B. McDermid, Roosevelt County Commissioner
The Honorable Timothy McGinn, Otero County Commissioner
The Honorable Harry H. Mendoza, McKinley County Commissioner
The Honorable Fred Miller, Union County Commissioner
The Honorable Daniel Monette, Socorro County Commissioner
The Honorable Alfredo Montoya, Rio Arriba County Commissioner
The Honorable Brian K. Moore, New Mexico State Representative
The Honorable Moises A. Morales, Rio Arriba County Commissioner
The Honorable Steve Neville, San Juan County Commissioner
The Honorable Marilyn Offutt, Luna County Commissioner
The Honorable Eloy Ortega, Chaves County Commissioner
The Honorable Aurelia H. Padilla, Valencia County Commissioner
The Honorable Isaac F. Padilla, Cibola County Commissioner
The Honorable S. T. Frank Pando, Valencia County Commissioner
The Honorable Eugene Podzemny, Union County Commissioner
The Honorable Leonard Rawson, New Mexico State Senator
The Honorable Wilson Ray, San Juan County Commissioner
The Honorable Rosalie Regensburg, Mora County Commissioner
The Honorable Bill W. Rice, Roosevelt County Commissioner
The Honorable Debbie A. Rodella, New Mexico State Representative
The Honorable Nick L. Salazar, New Mexico State Representative
The Honorable Bill Schwettmann, Lincoln County Commissioner
The Honorable Freddie John Scott, Cibola County Commissioner
The Honorable Ben Shelly, McKinley County Commissioner
The Honorable Daniel P. Silva, New Mexico State Representative
The Honorable John Arthur Smith, New Mexico State Senator
The Honorable Fannie Tillman-Smyer, Luna County Commissioner
The Honorable Jack Sullivan, Santa Fe County Commissioner
The Honorable Sandra L. Townsend, New Mexico State Representative
The Honorable Don Tripp, New Mexico State Representative
The Honorable Gloria C. Vaughn, New Mexico State Representative
The Honorable Richard D. Vigil, New Mexico State Representative
The Honorable Jeannette Wallace, New Mexico State Representative
The Honorable Bill Williams, Torrance County Commissioner
The Honorable W. C. Williams, New Mexico State Representative
The Honorable Avon W. Wilson, New Mexico State Representative
The Honorable Jerry Wood, Chaves County Commissioner
The Honorable Richard Zierlein, Otero County Commissioner

Individual Endorsements

The Honorable Tim L. Ashley, Curry County Commissioner
The Honorable Pete Hulder, Curry County Commissioner
The Honorable Edwin H. Perales, Curry County Commissioner
The Honorable Kathrynn Tate, Curry County Commissioner
The Honorable Jerry V. Whalen, Curry County Commissioner
The Honorable Charlie Lee, Former New Mexico State Senator
Ms. Mary D. Quintana, Otero County Clerk
Mr. Wayne Bennett, Otero County Assessor
Ms. Cathe Prather, Otero County Treasurer
Ms. Caren Cowen, Executive Director, New Mexico Cattle Growers Association
Mrs. Stella Montoya, Paragon Foundation Director
Mr. David Hill, Member of Middle Rio Grand Water Assembly
Mr. Tom Runyan, President, New Mexico Wool Growers, Inc.
Mr. Bob Jones, Paragon Foundation Board President
Ms. Mary Ann Baruch, President, New Mexico People for the USA
Mr. Ronnie Merritt, Paragon Foundation Director
Mr. Howard Hutchison, Executive Director, Coalition of Arizona/New Mexico Counties
Mrs. Maude Rathgeber, Immediate Past Chairman, Otero County Republican Party, State Chairman, Eagle Forum of New Mexico

New Mexico Counties In Which A Majority Of The County Commissioners Endorsed The Petition

Chaves County
Cibola County
Curry County
Guadalupe County
Luna County
McKinley County
Mora County
Otero County
Rio Arriba County
Roosevelt County
San Juan County
Santa Fe County
Socorro County
Torrance County
Union County
Valencia County

©2002 Clifford C. Nichols. Conceived, authored and written by Clifford C. Nichols, Attorney at Law, 2002.