Considering that the Fourth of July is upon us, the many bans on fireworks being imposed around our state and the fact that we are in the midst of another the fire season, I was just wondering: What has California done since the catastrophic fires of just a few years ago to remedy the situation? After fires of comparable devastation several years ago in New Mexico, that state’s legislators acted with a collective courage that is sadly uncommon in this nation today. In March 2001, the New Mexico State Legislature passed and then-Governor Gary Johnson signed into law what has become commonly known in that state as Senate Bill 1. The law conferred upon New Mexico counties the jurisdiction and authority to remove from the forests those overgrowth conditions that cause fires to become infernos threatening to the lives and property of its citizens.
The reasoning behind the law was simple. It is undeniable that environmental litigation under the Endangered Species Act and complementary mismanagement by the U.S. Forest Service has resulted over the years in excessive forest overgrowth in our national forests. When ignited from whatever source — a tossed cigarette, lightning or campfire — this excessive combustible fuel produces fires of such catastrophic proportions that they are virtually inextinguishable as witnessed in California. Such fires, in turn, threaten lives and homes — a threat to which federal officials in the Forest Service have continuously turned a blind eye to —despite repeated pleas that the condition be remedied. New Mexico determined that this continued threat to its citizens was both unnecessary and unacceptable. Further, they determined that if one governmental body, i.e. the federal government, was being derelict in its obligations to protect its citizens, it fell upon the legislators of the state to fill that jurisdictional void by taking action to protect those citizens. The result was Senate Bill 1 that provided, in pertinent part, as follows: “A. The legislature finds that: (1) Numerous citizens and government officials in the state of New Mexico have repeatedly petitioned the United States Forest Service both collectively and individually at public meetings, by correspondence and by telephone to request that the Forest Service take appropriate action to remove or eliminate the conditions that have created a state of emergency caused by a present risk to the lives and property of citizens in and adjacent to national forests within New Mexico; (2) all the petitions have for all practical purposes been either ignored or discounted by the United States Forest Service resulting only in what can be reasonably characterized is inaction on the part of the Forest Service to appropriately reduce, if not remove, the risk to the lives and property of the citizens of New Mexico; (3) because the United States Forest Service has failed to exercise its responsibilities as a sovereign to protect the lives and property of the citizens of New Mexico and because it is a fundamental principle under the laws of any just society that the persistent failure of a sovereign to fulfill such obligations constitutes grounds for the forfeiture of jurisdictional supremacy, such a forfeiture must hereby be recognized and declared; and (4) because of recognition and declaration of this forfeiture of jurisdictional supremacy, a jurisdictional vacuum has been created that requires the state of New Mexico to acknowledge its obligations as a sovereign power to protect the lives and property of its citizens and consequently to authorize any action it presently deems necessary to fill the vacuum created by the federal government by assuming jurisdiction to reduce to acceptable levels, if not remove, the threat of catastrophic fires posed by present conditions in national forests within its borders.
B. The legislature declares a disaster within those areas of the national forests of New Mexico that suffered severe fire damage, as determined by the local board of county commissioners, where large amounts of forest undergrowth have created the potential for damaging fires in the future. The legislature also declares that the disaster is of such magnitude that the police power of the state should be exercised to the extent necessary to provide the resources and services that will end the disaster and mitigate its effects.
C. After consulting with the state forester and the regional United States forester, taking surveys, holding those public hearings as may be necessary and developing a plan to mitigate the effects of the disaster, a board of county commissioners for a county in which a disaster has been declared pursuant to Subsection A of this section may take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees within the area of the disaster. A county may enter into an agreement with a contractor, licensee or other agent to carry out the purposes of this subsection.
Section 2. Emergency. It is necessary for the public peace, health and safety that this act take effect immediately.”
Bold? Yes. Extreme? Only if you consider the overwhelming majority of state legislators that voted for its passage and the governor who signed it into law extreme. Or only if you are among the small minority of those in our country who are themselves extremists in that they consider the life of an obscure plant or animal to be more valuable that the life of a human being. New Mexico’s response? When a choice is to be made, the lives of human beings should be given greater value than any plant or animal. The question remains of whether or not other states around our nation, like say California, are willing to take a similar stand based on a belief in the supremacy of human life. We can only hope. (Cliff Nichols is an attorney practicing criminal defense in Santa Monica. He may be contacted at either (310) 917-1083, or www.cliffnicholslaw.com. You may join his blog at www.thedailystand.com.)
Originally published in the Santa Monica Daily Press print edition on June 28, 2006. Read the original PDF.