Boundary Backpackers v. Boundary County

No. CV 93-9955 (D. Idaho January 27, 1994)

The court holds that a county ordinance requiring federal and state agencies to consult and coordinate with the county board of commissioners on land use decisions and to comply with the county's interim land use plan, which purports to control acquisition of private lands by federal agencies and prohibits federal agencies from acquiring private lands without returning equivalent public lands to the private sector, violates the Idaho and U.S. Constitutions. The court first holds that the plaintiff environmental groups have standing to challenge the ordinance. Affidavits submitted by members of the groups establish that they may suffer damage to their recreational and aesthetic interests as a result of the county enforcing the ordinance. Next, the court holds that the case is ripe and appropriate for declaratory judgment. The county's intent to follow its policy of promoting local economic development could result in the loss of public lands central to plaintiffs' interests, and ruling on the ordinance's constitutionality will clarify and settle the legal issues.

The court holds that the ordinance violates the Supremacy Clause of the U.S. Constitution. Congress' power under the Property Clause to control disposition of public lands is exclusive, without limitation, and free from state interference. The ordinance places requirements on the federal government that conflict with Article I of the U.S. Constitution and the Federal Land and Policy Management Act, and thus Federal law preempts the ordinance. Additionally, the court holds that the ordinance is inseverable because it is too broad in scope. Therefore, the court declares the entire ordinance void. Finally, the court holds County ordinance violates the Idaho Constitution, because Idaho's Constitution vests the State Land Board with exclusive control over the location, protection, sale, acquisition, or rental of state lands.

Counsel for Plaintiffs
Scott W. Reed
401 Front St., P.O. Box A, Coeur d'Alene ID 83814
(208) 664-2161

Counsel for Defendants
Randall W. Day
P.O. Box 1148, Bonners Ferry ID 83805
(208) 267-3197

[24 ELR 20522]

Michaud, J.:

Factual Background and Procedural History

On August 3, 1992, the Boundary County Board of Commissioners [24 ELR 20523] (Commissioners) enacted Boundary County Ordinance No. 92-2 (Ordinance). The Ordinance declares that the Boundary County Interim Land Use Policy Plan (Interim Plan), developed by the Boundary County government, guides the use of public lands and public resources in Boundary County. Boundary County, Idaho, Ordinance No. 92-2, § 2 (1992). The Ordinance provides in part:

The Interim Plan addresses federal and state land use management issues directly and is intended to be used as a positive guide for federal and state land management agencies in their development and implementation of those actions. The Boundary County Commission, when affected by such actions, shall be consulted and coordinated with in accordance with the laws of Idaho and the laws of the United States. Such consultation shall occur prior to adoption and implementation and shall continue at all stages thereafter.

Ordinance No. 92-2, § 2. The Ordinance requires federal and state agencies to comply with the Interim Plan and prior to any proposed action to submit to the Commission in writing reports for the Commission's review. Id.

The Interim Plan purports to control acquisition of private lands by federal agencies and prohibits federal agencies from acquiring any private lands without maintaining "as a minimum, parity in land ownership status." Ordinance No. 92-2, § 3, P 2. Prior County approval is required before state or federal governmental entities may make any changes in land use involving wildlife, timber sales, livestock grazing, mining, roads, primitive or wilderness designation, wild or scenic river designations, recreation, waste storage, wetlands, and water use. Ordinance No. 92-2, §§ 3-10. "Adverse impact studies" must be conducted before federal and state land agencies may change land use. Ordinance No. 92-2, § 3, P 6.

After enactment, copies of the Ordinance were sent by certified mail to all federal, state, and local agencies. A form letter accompanying copies of the Ordinance requested agencies to give the Commissioners 90-day notice of any "actions, plans, or proposed regulations that would effect (sic) or impact the economic stability, custom, or culture of Boundary County."

Federal and state officials responded promptly after receiving a copy of the Ordinance. David J. Wright, Forest Supervisor of the Idaho Panhandle National Forest, stated inan August 21, 1992, letter to the Boundary County Board of Commissioners:

The Office of General Council (sic) has advised the Forest Service that a local ordinance, such as the one you have enacted, has no legal effect. Federal laws and mandates governing the operation of the National Forests clearly state that county or local government may not control land management activities undertaken by the Forest Service.

Fritz U. Rennebaum, District Manager of the Bureau of Land Management, also wrote to the County Commissioners:

We agree that management of Federal land uses should be coordinated with State and local governments and conform to State laws and local ordinances when consistent with Federal law. We are concerned, however, that several requirements in your Interim Plan as they relate to public land are not consistent with Federal laws and regulations.

Stanley F. Hamilton, Director of the Idaho Department of Lands, sent an August 12, 1992, letter to the Boundary County Commissioners explaining that while the State Land Board may "call upon county commissioners for advice and recommendations about state land management," the State Land Board "has the sole authority for the direction, control, and disposition of the public lands of the state."

Since enactment of the Ordinance, the Boundary County Commissioners have established a number of land use committees to prepare reports on agriculture, timber and wood products, recreation and wildlife, and mining resources.

This action was filed on March 1, 1993.

Position of the Parties

Plaintiffs are individual residents and taxpayers of Boundary County and certain non-profit organizations whose members reside in Boundary County. Plaintiffs contend that the Ordinance violates the Property Clause and the Supremacy Clause of the United States Constitution and constitutes a public taking without due process of law. Plaintiffs also assert that the Ordinance is contrary to the Constitution of the State of Idaho and Idaho statutes.

Defendants moved to dismiss this action on the ground that Plaintiffs have failed to state a claim upon which relief could be granted because Plaintiffs' claims of unconstitutionality are unfounded. Defendants also maintain that Plaintiffs lack standing and have failed to demonstrate that this action is ripe for judicial review.

Scope of Review

Motions for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. I.R.C.P. 56(c); Siegel Mobile Home Group, Inc. v. Bowen, 114 Idaho 531, 757 P.2d 1250 (Ct. App. 1988). If the record contains conflicting inferences or if reasonable minds might reach different conclusions with respect thereto, the motion must be denied. Id.

In evaluating the motion, the facts are to be liberally construed in favor of the opposing party and that party is usually given the benefit of all favorable inferences that might reasonably be drawn from the evidence. Id. Where, as in this case, the action will be tried by the court without a jury, the court is not required to draw inferences in favor of the party opposing the motion. Kaufman v. Fairchild, 119 Idaho 859, 810 P.2d 1145 (Ct. App. 1991).

The party opposing a motion for summary judgment may not rest upon the mere allegations of its pleadings, but must respond by affidavits, or as otherwise provided under Rule 56, and must set forth specific facts showing that there is a genuine issue for trial. "If he does not so respond, summary judgment, if appropriate, shall be entered against him." I.R.C.P. 56(e); Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986).

Discussion

Courts may issue declaratory judgments "to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." Idaho Code § 10-1201. In general, a declaratory judgment can be rendered only where an actual or justiciable controversy exists. Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984). Justiciability is determined by analyzing, among others, doctrines of standing and ripeness. Miles v. Idaho Power Co., 116 Idaho 635, 639, 778 P.2d 757, 761 (1989).

I. Standing

Before reaching the constitutional issues, it must be determined whether the Plaintiffs have standing to challenge the Ordinance under the Property Clause and the Supremacy Clause of the United States Constitution and as a public taking without due process. In order to have standing, parties questioning the constitutionality of a statute or ordinance must establish how the statute is being applied to their disadvantage. Potter v. State, 114 Idaho 612, 759 P.2d 903 (1988).

The parties seeking to invoke the court's jurisdiction must show a "personal stake in the outcome of the controversy," requiring a "distinct palpable injury" to Plaintiffs and a "causal connection between the claimed injury and the challenged conduct." Miles v. Idaho Power Co., 778 P.2d 757, 763, 116 Idaho 635, 641 (1989) (quoting Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S. Ct. 2620, 2630 [8 ELR 20545] (1978)).

A. Injury to Plaintiffs

Plaintiffs have submitted affidavits alleging the following types of harm or injury imposed by the Ordinance: bar to wilderness areas;¹ undesireable controls upon national Forest Service management; interference with North [American] Audubon Society members efforts to protect birds and wildlife habitat on public lands; interference with and destruction of wildlife protection under the Endangered Species Act; excessive costs of implementing the Ordinance; interference with [24 ELR 20524] plans to sell property to the federal government; and interference with a professional guide's livelihood. A separate order will issue concerning Defendants' objections to Plaintiffs' affidavits.

The United States Supreme Court has recognized that litigants who use or reside near the affected land or waters with injury to their environmental, recreational, and aesthetic interests may satisfy the "injury-in-fact" standard to establish standing. Duke Power Co., 438 U.S. at 73-74, 98 S. Ct. at 2630.

Recently, the United States Supreme Court has tightened the standard for proof of injury in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177 [20 ELR 20962] (1990). In Lujan the Court questioned the sufficiency of the affidavits alleging harm to plaintiffs' recreational use and aesthetic enjoyment of the affected lands:

At the margins there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here — whether one of respondent's members have been, or is threatened to be, "adversely affected or aggrieved" by Government action — Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action.

Lujan, 497 U.S. at , 110 S. Ct. at 3189. The Court also found that the affidavits failed to state any particular actual or threatened "agency action" which was the source of the injuries. Lujan, 497 U.S. at , 110 S. Ct. at 3194.

A review of the affidavits establishes that one or more of the [P]laintiffs may suffer damage to recreational and aesthetic interests as a result of Defendants' enforcing provisions of the Ordinance.

For example, Dan Krmpotich is a guide who uses public lands and waters in Boundary County both for personal enjoyment and as recreation for his clients. The court concludes that under the Ordinance, county controls may be imposed affecting his rights to use the lands in question and can prohibit creation of wilderness areas in Boundary County.

John O'Connor watches birds and wildlife in the federal Kootenai National Wildlife Refuge and the state MacArthur Lake Wildlife Management Area. The court concludes that the enforcement of the Ordinance may interfere with federal and state management of these areas.

Bonners Ferry Forest Watch is an organization which is active in addressing environmental issues involving timber use and logging practices. Members allege that there are areas of Boundary County where "consolidation of public ownership is highly desirable from a management view for environmental watershed protection and other purposes supported by our group." The court concludes that the Ordinance bans federal acquisition of such lands without disposing of equal amounts of other federal lands in the county, thus thwarting such consolidation and impacts the interests of Bonners Ferry Forest Watch.

B. Causal Connection

The second prong of the standing requirement is a causal connection between the claimed injury and the challenged conduct. Miles, 116 Idaho at 641, 778 P.2d at 763. The Ordinance imposes an overlay of county control upon state and federal public lands, waters, and wildlife. Enforcement of the Ordinance could result in interference with the various interests claimed by Plaintiffs.

Since Plaintiffs have demonstrated a basis for standing to challenge the Ordinance, the question then becomes whether this action raises issues that are not merely hypothetical, but are ripe for review.

II. Ripeness

A declaratory judgment action must address issues that are "definite and concrete" and must comprise a "real and substantial controversy as opposed to an advisory opinion based upon hypothetical facts." Miles, 116 Idaho at 642, 778 P.2d at 764. "Ripeness asks whether there is any need for court action at the present time." Id. Defendants contend that the Plaintiffs at this stage have not suffered any cognizable injury and are not likely to suffer any injury in the future; therefore, the issues are not ripe for adjudication.

Declaratory judgments are proper when a set of facts indicating imminent and inevitable litigation is before the court. Miles, 116 Idaho at 642-43, 778 P.2d at 764-65. Other courts have issued declaratory judgments when the matter is of great public interest or importance, or to seek relief from uncertainty and insecurity with respect to legal relations, including rights created or abrogated by statute. See Colorado State Board of Optometric Examiners v. Dickson, 440 P.2d 287 (Colo. 1968); Wichita Computer & Supply, Inc. v. Mulvane State Bank, 805 P.2d 1255 (Kan. App. 1991); Washakie County School District No. One v. Herschler, 606 P.2d 310 (Wyo. 1980), cert. denied, 449 U.S. 824, 101 S. Ct. 86 (1980).

Plaintiffs do not have to demonstrate that a specific action be taken by the county as a prerequisite to obtaining declaratory relief. Harris, 106 Idaho at 516, 681 P.2d at 991. A declaratory judgment can afford preventive relief or may relate to a right that "is only yet in dispute or a status undisturbed but threatened or endangered. . . ." State ex rel. Miller v. State Board of Education, 56 Idaho 210, 217, 52 P.2d 141, 144 (1935).

In this case, the Ordinance decrees that any proposed land use management change by state or federal agencies be submitted to the county "prior to adoption and implementation." Ordinance No. 92-2, § 2. Specifically the Ordinance sets forth a policy to "increase opportunities for local economic development by increasing the amount of patented and non-federal land within the County." Ordinance No. 92-2, § 3, P 1. The county's intent to follow this policy could result in the loss of public lands central to the recreational and aesthetic interests of Plaintiffs. The Ordinance also requires the following:

2. Federal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first ensuring:

a. That as a minimum, parity in land ownership status is maintained; and

b. That private property interests are protected and enhanced.

Ordinance No. 92-2, § 3, P 2. One of the Plaintiffs has alleged an interest in selling property to the federal government. Such a transaction, according to the Ordinance, would be prohibited unless other public lands could be transferred to private ownership.

This action involves actual and existing facts which threaten or endanger the rights of one or more of the Plaintiffs. Ruling on the constitutionality of the Ordinance will clarify and settle the legal relations in issue; therefore, this matter constitutes a justiciable controversy appropriate for court action.

III. Constitutional Issues

A. Supremacy Clause

Although the national government is one of limited powers, powers actually granted to the federal government override conflicting state and local law. Article VI, Clause 2 of the United States Constitution provides that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." In M'Culloch v. Maryland, 17 U.S. 316 (1819), the Supremacy Clause was interpreted as meaning that federal laws form the supreme law of the land and that a state may not retard, impede, burden, or in any way control operations of valid laws enacted by Congress carrying into effect the powers vested in the federal government.

The state and federal governments have "dual sovereignty," and state or local governments may enact laws which do not conflict with valid federal legislation. United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079 (1978); Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905 (1979). Defendants argue that the Ordinance does not conflict with federal legislation since some federal laws and regulations compel consultation with local governments in developing land and resource plans and in coordinating planning efforts. In addition to mandating compliance of federal agencies with federal laws requiring consultation with local governments, assert Defendants, the Ordinance merely makes a number of county land use recommendations, such as a policy to refrain from designating additional wilderness areas.

[24 ELR 20525]

The federal government is empowered to regulate federal lands by the property clause of the Constitution:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. . .

U.S. Const. art. IV, § 3, cl. 2. This applies to all federal lands and waterways. Cappaert v. United States, 426 U.S. 128, 96 S. Ct. 2062, 2069 [6 ELR 20540] (1976). The United States Supreme Court has repeatedly held that Congress' power under the property clause is exclusive, without limitation, and free from state interference. See, e.g., Kleppe v. New Mexico, 426 U.S. 529, 96 S. Ct. 2285, reh'g denied, 429 U.S. 873, 97 S. Ct. 189 [6 ELR 20545] (1976); United States v. San Francisco, 310 U.S. 16, 29-30, 60 S. Ct. 749, 756, reh'g denied, 310 U.S. 657, 60 S. Ct. 1071 (1940).

Under the authority of the property clause Congress has enacted legislation concerning public lands. For example, Congress passed the Land and Policy Management Act of 1978 (FLPMA), 42 U.S.C. §§ 1701-1783 (1976), establishing guidelines for land use planning, land acquisition, and disposition of public lands. The Forest and Rangeland Renewable Resource Planning Act of 1974 (RPA), 16 U.S.C. §§ 1600-1687 (1974), directs the Secretary of Agriculture every four years to develop a Renewable Resource Program for "protection, management, and development of the National Forest System." 16 U.S.C. § 1602.

Whenever Congress' power over lands of the United States has been exercised with reference to land within the borders of a state, neither the state nor any of its agencies have authority to interfere. Griffin v. United States, 168 F.2d 457 (8th Cir. 1948). Although Congress may direct federal officials to consult with state and local governments in coordination of land and resource management planning, the federal provisions do not require federal officials to follow local government plans or ordinances. Local governments may enact land use plans or ordinances that affect federal public lands so long as the ordinances do not conflict with federal land use or federal law.

Boundary County Ordinance 92-2 mandates federal compliance with the Interim Plan and requires the United States government to maintain parity in disposition of federal properties.² Under the authority of Article I of the United States Constitution, the federal government may obtain land from a state, with the state's consent. U.S. Const. art. I, § 8, cl. 17; see Kleppe, 426 U.S. at 541-42, 96 S. Ct. at 2293. Pursuant to FLPMA, the United States government may also acquire public lands and access over non-federal lands "by purchase, exchange, donation, or eminent domain," 43 U.S.C. § 1715(a) (1976). If it is in the public interest, the federal government may procure private land by exchange. 43 U.S.C. § 1716 (1976). Since the county does not have the authority to prevent the federal government from acquiring or exchanging these lands, under the Supremacy Clause Boundary County Ordinance 92-2 is preempted by federal law.

Defendants urge that only those portions of Ordinance 92-2 which conflict with federal law should be declared unconstitutional under the "severability" clause of the Ordinance. See Ordinance 92-2, § 12. Such a result is impermissible under federal preemption doctrine:

[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct. 615, 621 (1984) (citations omitted). In this case, the powers the county attempts to confer on itself under the Ordinance are so broad that they touch upon all types of federal actions and an untold number of state and federal enactments.³ Since the scope of the Ordinance is all-encompassing, it would be nearly impossible to sort out the portions which conflict with federal legislation from those that do not. The entire [O]rdinance, therefore, must be declared void.

The court notes that federal legislation cited by Defendants already affords state and local governments the opportunity to consult with federal agencies in the management and coordination of planning and use of federal lands and resources.⁴

B. Constitution of the State and Idaho and Idaho Statutes

Plaintiffs also contend that Defendants exceeded their authority under the Idaho State Constitution and Idaho statutes in enacting Ordinance 92-2 and the Interim Plan.

The Local Planning Act addresses the extent to which state agencies must abide by local zoning ordinances:

The state of Idaho, and all of its agencies, boards, departments, institutions, and local special purpose districts, shall comply with all plans and ordinances adopted under this chapter unless otherwise provided by law. In adoption and implementation of the plan and ordinances, the governing board or commission shall take into account the plans and needs of the state of Idaho and all agencies, boards, departments, institutions, and local special purpose districts.

Idaho Code § 67-6528 (emphasis added). This section requires state agencies to comply with local zoning ordinances, but exempts state agencies from compliance if "otherwise provided by law."

In 1991, the Attorney General of the State of Idaho issued an opinion declaring that this exemption in Idaho Code § 67-6528 recognizes that authority to manage state lands under the Idaho Constitution is vested in the State Land Board:

The governor, superintendent of public instruction, secretary of state, attorney general, and state auditor shall constitute the state board of land commissioners, who shall have the direction, control, and disposition of the public lands of the state, under such regulations as may be prescribed by law.

Idaho Const. art. 9, § 7; see Idaho Attorney General Opinion No. 91-3 (March 7, 1991). As analyzed by the Attorney General, the phrase, "under such regulations as may be prescribed by law" applies primarily to procedural matters, and does not mean that the powers invested in the state land board are subject to substantive legislative regulation. Idaho Attorney General Opinion No. 91-3 at 3-5.

The Constitution of the State of Idaho also provides State Land Board control over the "location, protection, sale, or rental" of state lands:

It shall be the duty of the state board of land commissions to provide for the location, protection, sale, or rental of all the lands heretofore, or which may hereafter be granted to the state by the general government, under such regulations as may be prescribed by law. . . .

Idaho Const. art. 9, § 8. The Idaho legislature has mandated that the acquisition of state lands be supervised by the State Land Board:

The state board of land commissioners may select and purchase, lease, receive by donation, hold in trust, or in any manner acquire for and in the name of the state of Idaho such tracts or leaseholds of land as it shall deem proper, and after inventory and classification as provided herein, shall determine the best use or uses of said lands. . . . [24 ELR 20526] Idaho Code § 58-133. The State Land Board also may "call upon the boards of county commissioners in counties wherein the lands are situated for advice and recommendations in determination of future use and administration of said lands." Idaho Code § 58-132. According to the Attorney General, these sections "deomonstrate the legislature's determination that management of state lands would be hopelessly fragmented if local governments were allowed to dictate the uses to be made of such lands." Idaho Attorney General Opinion No. 91-3 at 7-8. The Attorney General concluded that the State Land Board is "not bound by the terms of the Local Planning Act and is not required to abide by county zoning ordinances." Idaho Attorney General Opinion No. 91-3 at 8.

The court concludes that under the Constitution of the State of Idaho and statutes enacted pursuant to the Idaho Constitution, Defendants exceeded their authority in enacting Ordinance 92-2 asserting control over management of state lands vested in the State Land Board.⁵

Since the court finds the Ordinance unconstitutional under the Supremacy Clause of the United States Constitution and under the Constitution of the State of Idaho, it need not address the issue of due process.

Order

Defendants' motion to dismiss is denied. Plaintiff's motion for summary judgment is hereby granted. Plaintiffs' counsel should submit a proposed judgment. If Plaintiffs do not dismiss Count II of their complaint as promised at the last hearing then the partial summary judgment shall incorporate a Rule 54(b), I.R.C.P., certificate. If Count II is dismissed, Plaintiffs are prevailing parties in the litigation and are entitled to costs pursuant to Rule 54(d), I.R.C.P.

1. Defendants responded to Plaintiffs' Interrogatory No. 31 concerning wilderness areas as follows:

Interrogatory No. 31: In H.R. 1570 introduced by Representative Larry LaRocco, the following areas are proposed for wilderness classification in Boundary County:

Salmo-Priest

Long Canyon

Does designation of these wilderness areas in H.R. 1570 as written conflict with Ordinance No. 92-2?

Answer to Interrogatory No. 31: Yes.

2. Lincoln County, New Mexico, in 1991 enacted an ordinance, the Lincoln County Interim Land Use Plan, Ordinance 91-7, which is very similar to the Boundary County Ordinance 92-2. A ranch owner attempted to exchange approximately 1,400 acres of land within the Lincoln County for 3,500 acres of BLM land, most of which was outside the county. Since the land exchange would have caused a loss of private land, Lincoln County sued to enforce its Interim Plan against the BLM and the ranch owner in United States district court. County of Lincoln v. United States of America, Manuel Lujan, No. CV-92-233 (12th Dist. Ct. N.M.). Later a "new expanded" Lincoln County Commission voted not to continue to prosecute the case. See A. Miller, All Is Not Quiet on the Western Front, 25 THE URB. LAW. 827, 838-39 (Fall 1993).

3. In addition to laws already mentioned, some of the federal legislation brought to the court's attention includes the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287 (1968); the Endangered Species Act, 16 U.S.C. §§ 1531-1543 (1973); the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370 (1974); the Fish and Wildlife Conservation Act of 1980, §§ 2901-2911 (1980); and numerous federal regulations.

4. A federal district court recently ruled that a county had standing under the National Environmental Protection Act to ensure that proper procedures required by the Act are followed by the United States Fish and Wildlife Service. The Oregon county filed the suit because of concern about the economic impact of cancellation of a timber sale by the federal agency to protect spotted own habitat. See Douglas County v. Lujan, 810 F. Supp. 1470 [23 ELR 20755] (D. Or. 1992).

5. The court will not address the issues of whether the Ordinance also violates state provisions vesting management and control of public waters, natural resources, and wildlife with other state agencies.