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Rancho Lobo, Ltd. v. Devargas

ELR Citation: 33 ELR 20016
Nos. No. 01-2196, 303 F.3d 1195/(10th Cir., 08/20/2002)

The court reverses a district court decision that the New Mexico Forest Conservation Act (FCA) preempted a county timber harvest ordinance and that the ordinance's environmental assessment provision included an invalid delegation of unlimited power to the county and zoning commission. The court first holds that the FCA does not expressly or impliedly preempt the county ordinance. Under state law, in order to expressly preempt a local ordinance, the legislature must clearly state its intention to do so. Although the FCA does provide the state forestry division with exclusive authority to enforce the state's forestry laws, the FCA does not contain language that unambiguously reflects an intent to expressly preempt local legislation regarding timber harvests. Similarly, the FCA does not impliedly preempt the county ordinance by occupying the entire field of regulation relating to timber harvesting in the state. The FCA's primary focus is the minimization of damage to the permitted land, but the FCA does not address the types of development issues with which local governments are traditionally concerned. The main focus of the ordinance is on local issues, such as erosion caused by timber harvesting, water quality, soil protection, and other local land uses. Likewise, the FCA's permit and clearcutting requirements do not impliedly preempt the ordinance's permit and clearcutting provisions due to conflict. The ordinance has stricter permit requirements for obtaining a timber permit, but the mere fact that an individual may be required to obtain local as well as state approval for its activities does not result in a conflict. Conflicts occur where the ordinance allows an act that the general law prohibits or prohibits an act that the general law allows. Neither of the ordinance's permit and clearcutting requirements satisfy this standard. Although the ordinance bans clearcutting without a variance, the FCA does not establish an affirmative right to clearcut.

The court also holds that the ordinance provision that the county zoning commission "may order an environmental assessment" does not constitute an invalid delegation of legislative authority to the county. The commission does not have the unlimited power to decide when an environmental assessment will be ordered. Rather, the commission may order an assessment only when it finds a significant environmental impact or where proposed and existing timber harvests, assessed together, will have a significant impact on the environment, public and private property, and public health, safety, and welfare. This power is capable of review and not arbitrary.

Counsel for Plaintiff
John R. Polk
Law Offices of John R. Polk
4550 Eubank Blvd. NE, Ste. 108, Albuquerque NM 87111
(505) 247-1100

Counsel for Defendant
Simeon Herskovits
Western Environmental Law Center
P.O. Box 1507, Taos NM 87571
(505) 751-0351