A Model For: An Ordinance Establishing A
County Natural Resource Board
Provided by Danny Martinez
SECOND DRAFT
STATE OF NEW MEXICO
COUNTY OF RIO ARRIBA
RIO ARRIBA COUNTY ORDINANCE NO._________
AN ORDINANCE ESTABLISHING
A
COUNTY NATURAL RESOURCE BOARD
WHEREAS: Federal law has mandated that federal agencies in the development, revision and implementation of land use plans “shall” coordinate, cooperate and consult with local governments within which the lands are located; and
WHEREAS: Family based and run ranching ,farming and mineral operations have been established in New Mexico and Rio Arriba County for over 400 years; and
WHEREAS: Family based and run ranching ,farming and mineral operations have been an essential element in the development of the history, customs, culture, laws and economic stability of the rural communities and counties; and
WHEREAS: Family based and run ranching ,farming and mineral operations have private property rights established under the common law, laws and customs of the times and recognized by the courts, in the form of water rights, possessory rights, appropriations doctrine and land patents; and
WHEREAS: Inhabitants of the local, rural communities have possessory rights in the nature of non commercial use of gravel, rock, wood, plant products such as pine nut and hunting prescriptive easements and rights of way; and
WHEREAS: These pre-existing private property rights acquired under the local, disposal and pre-emption laws were recognized by the United States in the Guadalupe-Hidalgo Treaty of 1848 and the 1866 Mining Act ; and
WHEREAS: The Constitution of the United States of 1789 did not grant Authority over these lands pursuant to Article I Section 8 clause 17 and the plenary powers of the United States under the territorial clause at Article IV Section 3 clause 2 vanished upon statehood of New Mexico on January 6, 1912 under the equal footings doctrine and the relationship between the republic state of New Mexico and the United States is a cooperative relationship and the Constitution of the United States and the doctrine of “Separation of Powers” is still the highest law of the land ; and
WHEREAS: The Board of County Commissioners recognizes that the United States has no police powers within the boundaries of the state of New Mexico and that the Board of County Commissioners is primarily responsible for the protection of the health, safety and well being (Police Powers) of the Citizens of Rio Arriba County and for the customs, culture and economic vitality of the county’s ranching, farming, mineral operations and businesses economic sectors; and
WHEREAS: The Board of Commissioners recognizes that the police powers within the boundaries of the state of New Mexico cannot be delegated to Federal employees, since there is no authority to enforce federal law without exclusive legislative authority granted to them by the state of New Mexico; and
WHEREAS: Private individuals who own family based and run ranches ,farms and mineral operations possess significant knowledge, experience , scientific information about local range conditions and proper management with a proven record of land stewardship thorough private enterprise; and
WHEREAS: Scientific data on carrying capacity of livestock, wild horses and burrows and wildlife numbers have been compiled and the Board of County Commissioners recognizes that this is a strict guide for resource protection; and
WHEREAS: It is essential that the Board of County Commissioner’s of Rio Arriba county intervene to stop outside forces that are working to destroy the customs, culture and economic base and prosperity of the County of Rio Arriba and its Citizens; and
WHEREAS: The Board of County Commissioners of Rio Arriba County has demonstrated its commitment to obtaining the best available scientific data and monitoring information to understand how best to manage the natural resources of lands within the boundaries of Rio Arriba County. Natural Resource issues include but are not limited to; plant community composition including Rangeland Ecological Status and trend, Forest Health, Watershed health and protection, overgrowth of trees and shrubs to the detriment of desired plants across the full spectrum of tree diameters, wild ungulate populations, wildlife grazing and forage use patters that adversely impact riparian and non riparian areas , ground water, livestock grazing management, and predator populations that cause unacceptable predation losses of wildlife and livestock, or endanger people: and
WHEREAS: The Board of County Commissioners of Rio Arriba County under the Home Rule Act of New Mexico and the police powers and the Constitution of New Mexico and the Laws of New Mexico and the doctrine of “Lex Loci” and the Doctrine of “Comity” has a duty to establish the proper relationship to the parties concerned: and
WHEREAS: The Board of County Commissioners of Rio Arriba County under the laws of New Mexico shall mandate that the sheriff of Rio Arriba County enforce the provisions of this Ordinance and to invoke the Posse Comitatus Act (the power and force of the County) to aid him in keeping the peace.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Rio Arriba County, New Mexico that an ordinance establishing a County Natural Resource Board be adopted:
Section 1. PURPOSE
The purpose of the Rio Arriba Natural Resource Board is to comply with the mandates of Federal Law and enable federal agencies to fully comply with these mandates through coordination that enables the federal agencies to resolve inconsistencies between federal proposals and Rio Arriba County Policies. These mandates are included in the Organic Act of 1897, The Taylor Grazing Act of 1934, FLPMA of 1976 (90 Stat. 1743, Public Law 94-579) specifically Section 202 (c)(9), The Public Rangeland Improvement Act of 1978 Sections 4 and 8, the mandates of NEPA and to enforce Section 701 of FLPMA in regards to pre-existing rights in the nature of water, easements, rights of way and possessory rights.
The purpose of the Rio Arriba County Natural Resource Board is to check any abuse of power or authority not granted to federal government by the Constitution of 1789, the government of New Mexico by the Constitution of New Mexico and to protect the private property rights of the Citizens of Rio Arriba County, New Mexico.
The purpose of the Rio Arriba County Natural Resource Board will advise the Board of County Commissioners of Rio Arriba County on actions that will be adverse to, mineral operations, farming and ranching that is needed for the support of the County and Schools, economic and social well being, trends in rangeland conditions, watershed and forest health, trends alternative and action needed to protect the Rio Arriba County’s jobs and tax base, private investment-backed expectations substantive and procedural rights under the 4th, 5th and 14th Amendments to the United States Constitution and retention and stabilization of the family run livestock, farming and mineral operations and to prevent undue conflicts with federal law and to prevent the abuse of process in the federal and State court systems.
The purpose of the Rio Arriba County Natural Resource Board is to settle disputes amicably with truthful and factual statements, sound science and objective Administrative Procedures; all with input from interested parties with every effort to maximize the communication, coordination and cooperation of all parties and to diminish abuse of power and authority.
To maximize the use of the Range Improvement Funds for range and water development and to prevent abuse of federal law in this area.
To Section 2. OBJECTIVES
In advising the Rio Arriba County Commission, the Rio Arriba County Natural Resource Board in its advisory capacity shall:
1. Complete a written statement of the Rio Arriba County Natural Resource Policy and Management Plan that will serve as the official plan and policy of Rio Arriba County.
2. Under direction of the County Commissioners, deliver this official plan to the sate and federal departments and agencies operating within Rio Arriba County for purposes of enabling each entity to coordinate with the County.
3. Coordinate, Cooperate and Consult with the Bureau of Land Management, the United States Forest Service, the United States Federal Fish and Wildlife Service, the New Mexico Game and Fish, the New Mexico Water Engineer and New Mexico grazing Task Force.
4. Coordinate, Cooperate and Consult its activities to fulfill the purposes and requirements of the Organic Act of 1987, Taylor Grazing Act, The Federal Land Policy and Management Act, the Public Rangeland Improvement Act, the National Forest Management Act; and
5. Advise, recommend, consult, coordinate and cooperate with State and Federal resource agencies, related to grazing, logging, farming, livestock operations, range planning and management to improve the stability of the livestock, farming, and logging operations improve rangeland, water shed, and forest conditions.
Section 3. FUNCTIONS: The Rio Arriba County Natural Resource Board shall accomplish the following functions:
1. Establish and coordinate intergovernmental natural resource advisory structures and processes with the BLM, Forest Service, USFWS and the State Land Office ; and
2. Coordinate with and assist Federal and State agencies in improving livestock, farming and logging operations, stewardship practices, and forest and rangeland management and/ or restoration, where necessary; and
3. Coordinate with and assist in the development and implementation of scientific and standardized range monitoring programs for each livestock, farming and logging operation in the County; and
4. Coordinate and recommend carrying capacities of the range, seasons, or use, drought management, wildlife numbers, alteration of stock management practices, wild ungulate management and removal, forest restoration, biomass removal and management, and any other matters affecting the administration of this ordinance consistent with Federal, State and Local resource laws and regulations; and
5. Advise and make recommendations on each grazing allotment, especially for grazing renewal, cancelation or re-issuance of permits or leases in compliance with federal and state law; and
6. Provide recommendations for use of the range improvement funds as well as other sources of funds for improving the range, forests and watersheds; and
7. Coordinate, cooperate and communicate as to the introduction of large predators and advise as to the impact on the social, economic and health and welfare of the communities within the boundaries of Rio Arriba County; and
8. Coordinate, cooperate and communicate as to closure of any RS 2477 Rights of Way established prior to 1976 Title V of FLPMA within the boundaries of Rio Arriba County; and
9. Advise as to the provisions of FLPMA Section 701 pre-existing rights; and
10. Advise as to the provisions of the Wilderness Act of September 3, 1964 and the Wild and Scenic Rivers Act of October 2, 1968.
Section 4. COMPOSITION/SELECTION:
The Rio Arriba County Natural Resource Board shall be composed of Four (4) members who own allotments within a forest reserve, two (2) members who own allotments within a grazing district managed by the BLM and one (1) member who is a state School land Lessee (State Land Office), one (1) member who is a farmer that lives off this farming operation, one (1) member of a mineral operation and one (1) member representing the American Indian Tribes within the County
These members are to be nominated by their peers but are selected initially by the Rio Arriba Board of Commissioners, there after selected by the members of the Rio Arriba County natural Resource Board.
The New Mexico State University’s Range Improvements Task Force, the nationally recognized authority in range research and evaluations, shall be requested to provide a member, with voice and vote, to the Rio Arriba County Natural Resource Board.
The New Mexico Department of Agriculture shall be requested to provide a member with voice and vote to the Rio Arriba County Natural Resource Board.
The Rio Arriba County Natural Resource Board officers and organizational By-Laws shall be established by the board.
The U.S. Forest Service, BLM, State Land Office and the New Mexico Department of Game and Fish shall be invited to have one representative each with a voice and no vote to attend all meetings of the Rio Arriba County Natural Resource Board.
Any individual organization that may be able to provide scientific, legal or any other pertinent information will be invited to attend meetings of the Rio Arriba County Natural Resource Board in order to provide specialized expertise and will have a voice with no vote.
Section 5. COMPLIANCE WITH NEW MEXICO OPEN MEETINGS ACT:
All meetings will conform to the requirements of the New Mexico Open Meetings Act.
PASSED, APPROVED and ADOPTED during a regular Rio Arriba County Commission meeting on September_____, 2009
BOARD OF COUNTY COMMISSIONERS
RIO ARRIBA COUNTY, NEW MEXICO
ATTEST:
_________________________ ________________________________
Moises Morales jr, County Clerk Elias Coriz District I
(seal) __________________________________
Alfredo L.Montoya District II
__________________________________
Felipe D. Martinez District III
FEDERAL LAND POLICY MANAGEMENT ACT OF 1976 (90 STAT. 2748, Public Law 94-579-October 21, 1976 Section 202 (c) In the development and revision of land use plans, the Secretary shall—(9) to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other Federal departments and agencies and of the States and local governments within which the lands are located, including but not limited to, the statewide outdoor recreation plans developed under the Act of September 3, 1964(78 Stat. 897), as amended, and of or for Indian tribes by, among other things, considering the policies of approved State and tribal land resource management programs…..
PUBLIC RANGELANDS IMPROVEMENT ACT OF 1978 ALLOTMENT MANAGEMENT PLANS
Section 8 Sections 402 (d) and (e) (90 Stat. 2743,2774; 43 U.S.C. 1752 (d) AND (e) are hereby amended---(a) by changing subsection (d) to read as follows: “(d) All permits and leases for domestic livestock grazing issued pursuant to this section may, upon satisfactory, completion of any court ordered environmental impact statements which may be required for the area involved, incorporate an allotme3nt management plan developed by the Secretary concerned. If the Secretary concerned elect to develop an allotment management plan for a given area, he shall do so in careful and considered consultation, cooperation and coordination with the lessee, permittees, and landowners involved, the district gazing advisory boards established pursuant to section 403 of the Federal Land Policy Management Act (43 U.S.C. 1753) and any State or States having lands within the area to be covered by such allotment management plan. Allotment management plans shall be tailored to the specific range conditions of the area to be covered by such plan, and shall be reviewed on a periodic basis to determine whether they have been effective in improving the range condition of the lands involved or whether such lands can be better managed under the provision of subsection (e) of this section. The Secretary concerned may revise or terminate such plans or develop new plans from time to time after review and carful and considered consultation, cooperation and coordination with the parties involved.
Black’s Law Dictionary 6th Edition page 335 Coordinate . Equal, of the same order, rank, degree or importance; not subordinate.
Black’s Law Dictionary 6th Edition page 334 Cooperate. To act jointly or concurrently toward a common end.
Black’s Law Dictionary 6th Edition page 1375 Shall. As used in statutes, contracts, or the like this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term “shall” is a word of command, and one which has always or which must be given a compulsory meaning as denoting obligation.
Black’s Law Dictionary 6th Edition page 994 Mineral. Any valuable inert or lifeless substance formed or deposited in its present position through natural agencies alone, and which is found either in or upon the soil of the earth or in the rocks beneath the soil.
MUTIPLE-USE SUSTAINED-YIELD ACT OF 1960 (PUBLIC LAW 86-517; APPROVED JUNE 12, 1960 AS AMENDED THROUGH DECEMBER 31, 1996, P.L. 104-333)
Section 3 [16 U.S.C. 530] In the effectuation of this Act the Secretary of Agriculture is authorized to cooperate with interested State and local governmental agencies and others in the development and management of the national forests. [emphasis added]
WILD AND SCENIC RIVERS ACT OF 1968
Section 3(d) (1) For rivers designated on or after January 1, 1986, the Federal agency charged with the administration of each component of the National Wild and Scenic Rivers System shall prepare a comprehensive management plan for such river segment to provide for the protection of the river values. The plan shall address resource protection,
development of lands and facilities, user capacities, and other management practices
necessary or desirable to achieve the purposes of this Act. The plan shall be coordinated
with and may be incorporated into resource management planning for affected adjacent
Federal lands. The plan shall be prepared, after consultation with State and local
governments and the interested public within 3 full fiscal years after the date of
designation. Notice of the completion and availability of such plans shall be published
in the Federal Register.
(2) For rivers designated before January 1, 1986, all boundaries, classifications, and
plans shall be reviewed for conformity within the requirements of this subsection within
10 years through regular agency planning processes.
.
Section 2 (a)
(a) The national wild and scenic rivers system shall comprise rivers
(i) that are authorized for inclusion therein by Act of Congress, or
(ii) that are designated as wild, scenic or recreational rivers by or pursuant to an act of
the legislature of the State or States through which they flow, that are to be permanently
administered as wild, scenic or recreational rivers by an agency or political subdivision
of the State or States concerned.
NEPA 1969
Sec. 101 [42 USC § 4331].
(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. [emphasis added]