Surrendering Sovereignty in Rural Oregon

By Jack H. Swift, Esq.
December 2, 2008
NewsWithViews.com

Last July, the County Commissioners in Baker, Grant, Union and Wallowa Counties signed an agreement (a memorandum of understanding - MOU) which established the relationship between the local governments and the U.S. Forest Service with regard to the Wallowa-Whitman National Forest. The agreement established the Forest Service as the “lead agency” for the development of a Travel Management Plan for forest roads. At the same time it relegated the counties’ role to that of “cooperating agency.” The agreement is important in a number of respects.

The agreement deals with the subject of roads and road closures in the Wallowa Whitman National Forest. Particularly it addresses a proposal by the USFS to close 4261 miles of forest roads in the affected counties. The plan is to limit all vehicle traffic in the areas involved to only roads designated “open.” This is simply a local implementation of a national policy designed to limit public access to our public lands through the creation of some 58 million acres of “roadless areas” across the nation. It is a policy which is the subject of great public controversy. It is a policy to which the USFS is adamantly committed, regardless of public opinion.

In the absence of such a MOU, the USFS is bound by the Federal Land Policy and Management Act of 1976 (16 U.S.C. §1604) which dictates that the government agency must “coordinate” its plans with those of the local government. Under the law, the local government is a “coordinating” agency, not a “cooperating” agency. The legal difference is awesome. All cooperation demands is a hearing of the cooperating agency’s concerns. Coordination demands compliance with the coordinating agency’s plan unless the federal agency can establish a violation of federal law by compliance. Quite literally, these counties surrendered their legal control in the matter to the feds. One wonders why.

It is reported that Baker County in response to the overwhelming objection of its constituency to the road closures initially undertook to pass an ordinance appropriating all closed forest roads as county roads. In return, the USFS threatened lawsuit. Confronted with the threat of aggressive federal insistence, the local government threw in the towel. Unfortunately, that has become the pattern on too many fronts.

In the arena of comprehensive statewide land use regulation, many counties initially voiced resistance to the plans of Portland and Salem to limit the growth of rural counties. When the State flexed its economic and litigation muscle, these rural counties quickly gave in. When Measure 37 came along granting landowners relief from the Draconian and senseless regulation, these counties were again vociferous in their support of their constituents’ rights. That support faded quickly when the State again flexed its muscle.

First the counties sat quietly by while the DLCD imposed limitations and restrictions not authorized under the law. Then, when Measure 49 was passed over the vote of their local constituents, they refused to honor the Constitutional rights of their constituents in the face of State opposition. Considering that a U.S. District Court has recently ruled that Measure 49 and the State have no power to interfere with those rights, it will be interesting to see whether the affected county will side with the State and appeal the ruling or side with its constituents and honor their rights. The pattern seems to suggest that they will knuckle under.

The problem in Oregon is that the rural counties are the subject of the tyranny of the majority in two key urban areas. This is a function of the one man, one vote dictate of a democracy. That is exactly why our founding fathers specifically rejected a democracy as the form of our government. They knew that wherever tried, democracy has failed. Instead, they opted for a republican government involving a two-house legislature which provided a balance to pure democracy. All statewide comprehensive land use regulation does is limit growth in the non-urban areas and guarantee control of the state by the urban interests.

If rural Oregon is to maintain any rights or benefits, its local governments must insist upon their republican rights. When there is a conflict between local interests and urban-imposed policies, they must fight for their rights and the rights of their constituents. Unfortunately, our elected officials are failing utterly in this regard. As a result, we in rural Oregon are losing all voice and authority regarding the regulation and quality of our lives.

There can be no honorable explanation for the surrender of the commissioners in Baker, Grant, Union and Wallowa Counties.

© 2008 Jack Swift - All Rights Reserved 

Jack Swift is an attorney licensed in California and Oregon who was inactive and living semi-retired in rural Oregon until Measure 49 came along. The law was a third career for Swift who began as a high school teacher of Latin and English and then followed a long term career in sales. His law career involved a specialized practice in Admiralty and Maritime Law which gained him experience in the Federal Courts. Along the way he also fell into civil rights controversies always involving Constitutional issues. He has appeared in cases in Australia, Mexico, Florida, Alaska, Louisiana, California, and Oregon and has argued successfully before the 9th Circuit. He was part of the team of lawyers that prosecuted the Judge Panner case in Medford.

He is a graduate of Georgetown University and Thomas Jefferson School of Law. He resides in Grants Pass with his wife Cathy. He has two sons and two grandchildren. He is active in community affairs as the Chapter Coordinator for Josephine County Americans for Prosperity and is the Vice Chairman of Southern Oregon Resource Alliance (SORA).

E-mail: jhswft@earthlink.net