                                                                                FILED
                                                                    United States Court of Appeals
                                         PUBLISH                            Tenth Circuit

                          UNITED STATES COURT OF APPEALS                 December 8, 2016

                                                                        Elisabeth A. Shumaker
                                 FOR THE TENTH CIRCUIT                      Clerk of Court
                             _________________________________

UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                            No. 15-2210

BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY
OF OTERO,

       Defendant - Appellant,

and

STATE OF NEW MEXICO,

       Defendant.

------------------------------

PACIFIC LEGAL FOUNDATION,

        Amicus Curiae.
                             _________________________________

                         Appeal from the United States District Court
                               for the District of New Mexico
                           (D.C. No. 2:12-CV-00120-MCA-SMV)
                           _________________________________

Dori E. Richards (A. Blair Dunn, with her on the briefs), Western Agriculture, Resource
and Business Advocates, LLP, Albuquerque, New Mexico, for Appellant.

David C. Shilton (Nicholas L. Pino, USDA Office of General Counsel, Albuquerque,
New Mexico, John C. Cruden, Assistant Attorney General, and Andrew A. Smith, with
him on the brief), Environment and Nat. Res. Div., U.S. Department of Justice,
Washington, D.C., for Appellee.

John M. Groen and Anthony L. FranHois, Pacific Legal Foundation, Sacramento,
California, filed an Amicus Curiae brief in support of Appellant.
                        _________________________________

Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

HARTZ, Circuit Judge.
                         _________________________________

        A New Mexico statute and a resolution adopted by the Otero County Board of

County Commissioners purported to authorize the Board to mitigate fire danger in the

Lincoln National Forest without first obtaining permission from the U.S. Forest Service.

The United States obtained a judgment from the United States District Court for the

District of New Mexico invalidating the statute and the resolution. The Board appeals.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Property Clause of the

United States Constitution authorizes the federal government to promulgate regulations

governing use of national forest lands; and under the Constitution’s Supremacy Clause

and binding precedent, those regulations prevail over any contrary state or local law.

   I.      BACKGROUND

        In recent years New Mexico has suffered from major fires originating on federal

land within the state. Apparently in response to a devastating fire that consumed many

homes in the city of Los Alamos, the state legislature in 2001 enacted a statute

authorizing self-help by local communities. Recognizing “inaction on the part of the

forest service to appropriately reduce, if not remove, the risk to the lives and property of
                                              2
the citizens of New Mexico,” the statute enabled “a board of county commissioners for a

county in which a disaster has been declared . . . [to] take such actions as are necessary to

clear and thin undergrowth and to remove or log fire-damaged trees within the area of the

disaster” after, among other things, consulting with the Forest Service. N.M. Stat. Ann. §

4-36-11(A)(2), (C) 1978.1


1
    The statute provides in full:

         A. The legislature finds that:

         (1) numerous citizens and government officials in the state of New Mexico
         have repeatedly petitioned the United States forest service both collectively
         and individually at public meetings, by correspondence and by telephone to
         request that the forest service take appropriate action to remove or eliminate
         the conditions that have created a state of emergency caused by a present
         risk to the lives and property of citizens in and adjacent to national forests
         within New Mexico;

         (2) all the petitions have for all practical purposes been either ignored or
         discounted by the United States forest service resulting only in what can be
         reasonably characterized as inaction on the part of the forest service to
         appropriately reduce, if not remove, the risk to the lives and property of the
         citizens of New Mexico;

         (3) because the United States forest service has failed to exercise its
         responsibilities as a sovereign to protect the lives and property of the
         citizens of New Mexico and because it is a fundamental principle under the
         laws of any just society that the persistent failure of a sovereign to fulfill
         such obligations constitutes grounds for the forfeiture of jurisdictional
         supremacy, such a forfeiture must hereby be recognized and declared; and

         (4) because of recognition and declaration of this forfeiture of jurisdictional
         supremacy, a jurisdictional vacuum has been created that requires the state
         of New Mexico to acknowledge its obligations as a sovereign power to
         protect the lives and property of its citizens and consequently to authorize
         any action it presently deems necessary to fill the vacuum created by the
         federal government by assuming jurisdiction to reduce to acceptable levels,
                                               3
         Fire danger from federal land was a significant concern in Otero County, where

over 75% of the land is owned by the United States. On May 6, 2011, the Sacramento

Ranger District issued a letter “closing the Lincoln National Forest due to the drought and

extremely high fire risk.” Cty. Resolution, Aplt. App., Vol. I at 30. The Board followed

suit on May 23, passing a resolution declaring “a state of emergency and disaster . . . in

and around the communities and watersheds in the Sacramento Mountains.” Id. at 31.

The resolution noted the County’s statutory authority to take any necessary action to

remove hazardous vegetation within the area after consulting with the Forest Service.2



         if not remove, the threat of catastrophic fires posed by present conditions in
         national forests within its borders.

         B. The legislature declares a disaster within those areas of the national
         forests of New Mexico that suffered severe fire damage, as determined by
         the local board of county commissioners, where large amounts of forest
         undergrowth have created the potential for damaging fires in the future. The
         legislature also declares that the disaster is of such magnitude that the
         police power of the state should be exercised to the extent necessary to
         provide the resources and services that will end the disaster and mitigate its
         effects.

         C. After consulting with the state forester and the regional United States
         forester, taking surveys, holding those public hearings as may be necessary
         and developing a plan to mitigate the effects of the disaster, a board of
         county commissioners for a county in which a disaster has been declared
         pursuant to Subsection A of this section may take such actions as are
         necessary to clear and thin undergrowth and to remove or log fire-
         damaged trees within the area of the disaster. A county may enter into an
         agreement with a contractor, licensee or other agent to carry out the
         purposes of this subsection.

N.M. Stat. Ann. § 4-36-11 (emphasis added).
2
    The relevant provision of the resolution provides:
                                               4
       The Board retained a consultant to prepare a plan to mitigate the danger. The plan

proposed to “restore” 69,000 acres in the Lincoln National Forest by extracting “small

and medium size . . . standing live and dead trees and wood materials.” Dist. Ct. Summ.

J. Opinion, Aplt. App., Vol. II at 388 (Dist. Ct. Op. at 4) (internal quotation marks

omitted). A modified plan called for the “treatment of 1,200 to 1,500 acres . . . in an area

within Mexican Spotted Owl (MSO) habitat with MSO present in the area.” Dist. Ct. Op.

at 8 (internal quotation marks omitted). The Board decided to implement the plan and

notified the Forest Service. The Forest Service did not approve the proposed measures.

       When the Board indicated that it was going to execute the plan anyway, the United

States sued the Board and the State of New Mexico in federal court seeking a declaration

that the resolution and its enabling statute were preempted by conflicting federal law.

The United States also sought to enjoin public officials from implementing the plan on

federal lands without prior approval from the Forest Service. It relied on federal




              BE IT FURTHER RESOLVED that the Board of County
       Commissioners hereby formally notifies State and Federal officials that
       pursuant to NMSA 1978 §4-36-11 C. it is empowered to, after consulting
       with the State Forester and the Regional United States Forester, taking
       surveys, holding those public hearings as may be necessary and developing
       a plan to mitigate the effects of the disaster, as a county in which a disaster
       has been declared pursuant to Subsection A of NMSA 1978 §4-36-11 may
       take such actions as are necessary to clear and thin undergrowth and to
       remove or log fire-damaged trees within the area of the disaster. Otero
       County may also enter into an agreement with a contractor, licensee or
       other agent to carry out the purposes of NMSA 1978 §4-36-11.

Cty. Resolution, Aplt. App., Vol. I at 31.

                                             5
regulations requiring Forest Service consent before anyone could cut, damage, or remove

trees or brush from a national forest.

       The district court granted summary judgment to the United States. The court first

ruled that because the threatened injury (actions on federal land without Forest Service

approval) was impending at the time of suit, the United States had standing and its claims

were ripe for adjudication. On the merits the court held that “the Property Clause grants

the federal government plenary power over federal lands, and consequently . . . the Tenth

Amendment does not reserve an exclusive sovereign right to New Mexico to regulate

federal lands in contravention of federal law.” Id. at 9. The state statute and local

resolution thus were preempted under the Supremacy Clause, as they conflicted with

federal law. The court rejected the State’s suggested construction of the statute to make it

consistent with federal law, saying that the suggested construction was contrary to “the

statute’s plain and unambiguous language [and] its legislative intent.” Id.

       The Board, but not the State, appeals. It does not challenge the district court’s

rulings on standing and ripeness. And, consistent with the position it took in the district

court, it offers no argument that the resolution or statute can be read in a manner

consistent with federal law. It frames the sole issue on appeal as: “[D]oes the Property

Clause of the United States Constitution so thoroughly preempt state power that a state

may not, under any circumstances, remove a deadly and destructive nuisance from

National Forest lands even where the United States refuses or fails to remove that danger

itself[?]” Aplt. Reply Br. at 1.


                                             6
   II.      DISCUSSION

         There is no dispute that a local government can ordinarily exercise its police

powers to mitigate fire danger within its territorial boundaries. But a federal regulation

promulgated by the Department of Agriculture requires permission of the Forest Service

before anyone can “[c]ut[] or otherwise damag[e] any timber, tree, or other forest

product” in a national forest. 36 C.F.R. § 261.6(a) [(2016)]. The Board has not

questioned the statutory authority to promulgate the regulation. The issue before us is

solely one of constitutional power. The constitutional authority invoked by the United

States is the Property Clause, which states: “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.

         Although the United States has title to the Lincoln National Forest, the Board

contends that the federal government’s power over that land under the Property Clause

must be limited. It says that the federal regulation at issue here reaches beyond the

proper scope of the Property Clause because it “deprives the State of New Mexico and

Otero County of the ability to protect the health, safety and welfare of their citizens . . . ,

skewing the ‘healthy balance of power’ between the States and the Federal government.”

Aplt. Br. at 33. According to the Board, “It is both troubling and nearly inconceivable . .

. that the federal government would have unfettered and absolute authority over lands not

expressly proclaimed by the Constitution as necessary for federal governance.” Id. at 23–

24. In particular, it says, the Property Clause does not grant the federal government


                                               7
“absolute, unfettered plenary power” to prohibit the States from taking measures they

deem necessary “to protect their citizens from impending harm.” Id. at 40–41. This

power not being conveyed to the federal government, the argument continues, it must be

reserved to the States under the Tenth Amendment. See U.S. Const. amend. X (“The

powers not delegated to the United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.”). Thus, when, as in this

case, “the United States fails or refuses to remove from federal lands a condition that

poses an imminent threat of extreme danger to the life and property of a state’s citizens,

. . . the Tenth Amendment reserves to the state powers sufficient to take reasonable,

minimally invasive steps to abate the dangerous condition.” Aplt. Reply Br. at 7.

       Binding precedent requires us to reject the Board’s argument. The Supreme

Court, followed by this court, has declared that the Property Clause gives the federal

government plenary power, including legislative and police power, over federal property.

Although state and local governments can ordinarily exercise their police powers over

federal land within their boundaries, those powers must yield under the Supremacy

Clause when they conflict with federal law under the Property Clause.

       We begin with the Supreme Court’s decision in Kleppe v. New Mexico, 426 U.S.

529 (1976), which reviewed the constitutionality of the Wild Free-Roaming Horses and

Burros Act (Wild Horses Act), 16 U.S.C. §§ 1331–1340. Congress passed the Act “to

protect all unbranded and unclaimed horses and burros on public lands of the United

States” and specified that “all such horses and burros on the public lands administered by


                                              8
the Secretary of the Interior . . . or by the Secretary of Agriculture . . . are committed to

the jurisdiction of the respective Secretaries.” Kleppe, 426 U.S. at 531 (internal quotation

marks omitted). Seeking to exercise control over wild horses and burros on federal lands,

the State of New Mexico sought a declaration that the Act was unconstitutional. See id.

at 534. It argued in part that the Act could not be sustained under the Property Clause

because “[t]he statute is aimed at protecting the wild horses and burros, not at protecting

the land they live on.” Id. at 535 (internal quotation marks omitted).

       In rejecting the State’s argument, the Court described the scope of the Property

Clause in broad terms. It stated that “Congress exercises the powers both of a proprietor

and of a legislature over the public domain” and that “even over public land within the

States, [t]he general government doubtless has a power over its own property analogous

to the police power of the several states.” Id. at 540 (internal quotation marks omitted).

To be sure, the Court observed that “the furthest reaches of the power granted by the

Property Clause have not yet been definitively resolved.” Id. at 539. The uncertainty to

which it referred, however, appears to concern not power over federal land but power

over property outside federal land. Two paragraphs earlier the Court had discussed

Camfield v. United States, 167 U.S. 518 (1897), which recognized authority to regulate

“fences built on private land adjoining public land when the regulation is for the

protection of the federal property.” Kleppe, 426 U.S. at 538. Although the Court quoted

language from Camfield noting limits on federal power, it concluded by saying:

“Camfield contains no suggestion of any limitation on Congress’ power over conduct on


                                               9
its own property; its sole message is that the power granted by the Property Clause is

broad enough to reach beyond territorial limits.” Id. (emphasis added). Indeed, the Court

said that it had “repeatedly observed that [t]he power over the public land thus entrusted

to Congress is without limitations.” Id. at 539 (emphasis added) (internal quotation

marks omitted). It noted that in a prior decision the Court had said “that the Property

Clause gives Congress the power over the public lands ‘to control their occupancy and

use, to protect them from trespass and injury, and to prescribe the conditions upon which

others may obtain rights in them . . . .’” Id. at 540 (quoting Utah Power & Light Co. v.

United States, 243 U.S. 389, 405 (1917)). The Court upheld the Wild Horses Act as

falling within “the complete power that Congress has over public lands,” which “includes

the power to regulate and protect the wildlife living there.” Id. at 540–41 (internal

quotation marks and footnote omitted).

       Kleppe confronted and rejected the argument (an argument quite similar to one

made by the Board) “that if we approve the Wild [Horses] Act as a valid exercise of

Congress’ power under the Property Clause, then we have sanctioned an impermissible

intrusion on the sovereignty, legislative authority, and police power of the State.” Id. at

541. The Court’s response was short and categorical: “The Federal Government does

not assert exclusive jurisdiction over the public lands in New Mexico, and the State is

free to enforce its criminal and civil laws on those lands. But where those state laws

conflict with . . . legislation passed pursuant to the Property Clause, the law is clear: The

state laws must recede.” Id. at 543.


                                             10
       In Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002), this circuit applied

Kleppe’s reasoning to another Tenth Amendment challenge to a federal regulation based

on the Property Clause. The challenge arose from a disagreement between the State of

Wyoming and the federal government over how to address a disease that was afflicting

elk on federal lands and posing a threat to domestic cattle. See id. at 1218, 1219–22.

Wyoming filed suit against the United States and the Secretary of the Interior claiming

that the federal government had interfered with its “‘sovereign right’ to manage wildlife

within its borders” when the federal government refused to allow the State to vaccinate

elk on federal land. Id. at 1222.

       Wyoming challenged the federal government’s actions on the ground that the

Tenth Amendment reserves to the States “the right to manage wildlife on [federal land] to

protect its own wildlife and domestic livestock.” Id. at 1224. We observed that although

the States historically have possessed broad powers over wildlife (even on federal lands),

the Supreme Court had ruled that those powers must yield under the Supremacy Clause

when they conflict with federal law enacted under the Property Clause. See id. at 1226–

27. We repeated the Supreme Court’s declaration that “Congress’ power [over federal

land] is ‘plenary,’” id. at 1227 (quoting Cal. Coastal Comm’n v. Granite Rock Co., 480

U.S. 572, 581 (1987)), and we noted Kleppe’s holding that the Property Clause allows

Congress to regulate and protect wildlife living on federal lands, see id. In our view, “the

point [was] painfully apparent that the Tenth Amendment does not reserve to the State of

Wyoming the right to manage wildlife, or more specifically vaccinate elk, on [federal


                                            11
land].” Id.; see also id. at 1226 (“If the Constitution delegates to Congress the power to

exercise management authority over federal land, including the wildlife thereon, ‘the

Tenth Amendment expressly disclaims any reservation of that power to the States.’”

(quoting New York v. United States, 505 U.S. 144, 156 (1992))).

       The Board argues that these declarations are based on a misunderstanding of

constitutional history and are nonbinding dicta because they did not address the

compelling local interests at stake in this case. We are not persuaded. Perhaps the

statements about the unlimited power of the federal government over its lands could be

considered dicta because they are somewhat broader than necessary to resolve the

disputes before the courts. See Cohens v. Virginia 19 U.S. 264, 399 (1821) (“It is a

maxim, not to be disregarded, that general expressions, in every opinion, are to be taken

in connection with the case in which those expressions are used. If they go beyond the

case, they might be respected, but ought not to control the judgment in a subsequent suit,

when the very point is presented for decision.”); cf. Bryan A. Garner et al., The Law of

Judicial Precedent, 61 (2016) (noting “the degree of judgment that goes into classifying a

court’s reasoning as holding or dictum”). But each statement was fully considered, went

to the core of the issue under review, and was the explicit basis for the decision. See

Garner at 51 (“The distinction between a holding and a dictum . . . [depends] on whether

the solution of the particular point was more or less necessary to determining the issues

involved in the case.”) And the statements by the Supreme Court are entitled to great

weight even if technically dicta; we have regularly followed statements of the Court that


                                            12
clearly were not holdings. See, e.g., Peterson v. Martinez, 707 F.3d 1197, 1209–11 (10th

Cir. 2013) (following dictum in Robertson v. Baldwin, 165 U.S. 275 (1897), in part

because dictum had not been “enfeeble[d]” by recent jurisprudence); Gaylor v. United

States, 74 F.3d 214, 217 (10th Cir. 1996); see generally Garner at 69–70 (“[N]ot all dicta

are created equal. Intermediate courts typically treat higher courts’ dicta—those in

vertical precedents—with greater respect than their own, not only because of the position

of the higher court, but also because today’s dicta are an indication of what may well be

tomorrow’s binding precedent.” (footnote omitted)). We have no authority to reject the

reasoning behind a Supreme Court holding—whether based on questionable logic or

history—and we see nothing in Supreme Court opinions suggesting that the Court might

limit its precedents declaring that the federal power at issue here is “plenary,” Granite

Rock, 480 U.S. at 581, and “without limitations,” Kleppe, 426 U.S. at 539 (internal

quotation marks omitted).

       The district court properly rejected the Board’s argument that state law can escape

preemption if the general purposes behind state and federal law diverge. It observed that

the Supreme Court has “held that . . . the purpose of the laws, whether parallel or

divergent, is not relevant to the preemption inquiry.” Dist. Ct. Op. at 46. As the

Supreme Court said in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132

(1963), it “has, on the one hand, sustained state statutes having objectives virtually

identical to those of federal regulations and has, on the other hand, struck down state

statutes where the respective purposes were quite dissimilar,” id. at 142 (citations


                                             13
omitted). “The test,” it said, “of whether both federal and state regulations may operate,

or the state regulation must give way, is whether both regulations can be enforced

without impairing the federal superintendence of the field, not whether they are aimed at

similar or different objectives.” Id. Thus, it makes no difference that the federal purpose

may be, say, protection of the habitat of an endangered or threatened species whereas the

Board’s interest is protection of human life and home. When different governments

differ in their assessment of danger, one must prevail, and the Supremacy Clause says

that in these circumstances it must be the United States. See U.S. Const. art. VI, cl. 2

(“This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof . . . shall be the supreme Law of the Land.”). As the Supreme Court said in

Kleppe, “A different rule would place the public domain of the United States completely

at the mercy of state legislation.” 426 U.S. at 543 (internal quotation marks omitted).3

    III.   CONCLUSION

       We AFFIRM the decision of the district court. The New Mexico statute and the

County resolution must yield to federal law regarding conduct on federal land. In its

3
  The County may have a right to take action when the fire danger is immediate. The
government has suggested in this case that self-help is permitted in an emergency. See
Aplee. Fed. R. App. P. 28(j) Letter of 9/28/16 at 1–2 (under federal regulation, “the
County could respond to an actual wildfire emergency without prior authorization so long
as it applies for a special use permit at the earliest opportunity”); cf. McDonald v. City of
Chicago, 561 U.S. 742, 767 (2010) (“Self-defense is a basic right, recognized by many
legal systems from ancient times to the present day . . . . ”); United States v. Toledo, 739
F.3d 562, 567 (10th Cir. 2014) (“A person may resort to self-defense if he reasonably
believes that he is in imminent danger of death or great bodily harm.”). We express no
view on the government’s suggestion. The important point for present purposes is that
any exception to the broad sweep of the federal regulation must come from federal, not
state or local, law.
                                               14
amicus curiae brief in support of the Board, Pacific Legal Foundation argues that the

County can hold the Forest Service liable under federal common law for maintaining a

public nuisance (extreme fire risk) on federal land. But that issue is not properly before

us, because it has not been raised by a party. See Tyler v. City of Manhattan, 118 F.3d

1400, 1403 (10th Cir. 1997) (declining to address previously unraised argument in

amicus curiae brief because framing of the issues on appeal is “a prerogative more

appropriately restricted to the litigants”). For the same reason, we do not address whether

the Board may obtain relief under the Administrative Procedure Act (APA). See

Wyoming, 279 F.3d at 1239 (State may pursue relief under APA regarding federal

government’s denial of State’s request to vaccinate elk on federal land). The sole issue

before us is whether federal law preempts the state statute and County resolution. We

hold that it does.




                                            15
