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Jackson County could not assume control of federal forestland

The idea that Jackson County could declare control over local federal forests is a myth, the county's attorney told the Board of Commissioners Wednesday.

Rick Whitlock, the attorney for Jackson County, said county officials have been asked on numerous occasions why they don't take a stance as county officials did in Apache County, Ariz., and defy the feds.

Whitlock said the people contacting the county believe that "Apache County brought the federal government to its knees," but he said the truth is much less dramatic.

Apache County supervisors voted to usurp federal authority for thinning operations in forests after a devastating fire burned 500,000 acres near Greer, Ariz., in 2011.

But while the county worked with the feds to thin a relatively small area — about one one-hundreth of 1 percent of the burn area — it never came close to taking ownership of the forests.

After reviewing the Apache County situation, Whitlock found that Jackson County appears to be further ahead in working collaboratively with the federal government to undertake forest-thinning operations.

The issue came up during the campaign for a commissioner's seat between Republican Doug Breidenthal and Democrat Jeff Scroggin.

Breidenthal, who won the Nov. 6 election and will take office in January, has said Jackson County should follow Apache County's lead.

Commissioners have also received questions from local residents on the issue during town hall meetings held this year.

Whitlock said he studied the issue for months, reviewing legislation dating to 1780, and concluded that challenging the federal government's authority over federal lands is an exercise in futility.

He said that since the 1950s, federal courts have sided with the federal government's assertion that it owns federal forests.

Whitlock said that since the 1970s there has been a so-called Sagebrush Rebellion, in which Western states in particular have tried unsuccessfully to take back ownership of federal forestland.

Despite various legal efforts, the states have lost in their efforts to wrest control of these forests away from the feds, Whitlock told the commissioners.

"In short, the federal law is supreme," he said.

In Arizona, conservative Gov. Jan Brewer refused to sign a bill that would have initiated a process to attempt to take over federal forests. A proposition was placed before voters in November seeking the same results, but was overwhelmingly defeated.

Whitlock said Arizona also didn't have the financial wherewithal to properly manage federal lands on its own.

The situation in Apache County culminated in a collaboration with the federal government on an 85-acre thinning operation near Greer, after full environmental review. In a similar situation in Otero County, N.M., the end result was the clearing of 1 acre.

However, Otero County and the state of New Mexico are engaged in a legal battle over control of the forests.

In Jackson County, which hasn't challenged the federal government's authority, 82,000 acres were thinned from 2007 to 2012. The U.S. Forest Service calculates that at least 72,000 acres in the Rogue River-Siskiyou National Forest are scheduled for thinning, with much of the timber being sent to local mills. A stewardship project is clearing and harvesting 7,500 acres in the Ashland Watershed.

Also on the near horizon is the Vine Maple timber sale, which includes forest restoration thinning on 479 acres near Butte Falls. That's part of the Friese Camp ecological forestry project covering some 2,200 acres, which could ultimately produce some 20 million board feet, according to federal Bureau of Land Management officials.

The forest-thinning operations in Jackson County have been a result of collaboration with federal officials.

"We haven't had to act in defiance to get these same results," County Administrator Danny Jordan said.

Breidenthal, who wasn't able to attend the commissioners' meeting Wednesday because of work obligations, said he couldn't comment on Whitlock's presentation without being able to review it.

"I have no comment until I can talk to counsel and see what he has to say," Breidenthal said.

He said he wouldn't comment on his previous statements about Apache County, saying he was misquoted.

The commissioners said they asked for a review of the federal forests ownership question so they could respond to questions from local residents.

"Certain segments of society would like us to take on these battles on our own," Commissioner John Rachor said.

Commissioner C.W. Smith said, "I know there are those out there who don't agree with the court decisions."

However, he said, the rule of law applies whether or not people agree with the courts.

Commissioner Don Skundrick said, "It's an ongoing tension between federal rights and state rights."

Reach reporter Damian Mann at 541-776-4476 or email dmann@mailtribune.com.