High Court Hears Arguments On ‘Wise Use’ County Officials, Environmentalists Agree State Court Ruling Is Real Test

Boundary County wasn’t out to control federal land with its contentious “wise use” plan.

Commissioners just wanted a little cooperation, the county’s attorney told the Idaho Supreme Court on Wednesday.

Not true, argued attorneys for the other side. The document is a miner’s spade, designed to bury the federal government.

So was drawn the line of contention in the controversial land-use plan’s first major court appeal: What does the wise-use ordinance mean?

A District Court judge in February 1994 agreed with environmental groups and 18 residents who had sued the county. He ruled the plan illegal, claiming it violates the U.S. and Idaho constitutions.

Both sides agreed Wednesday the Supreme Court’s ruling, probably months away, will be the real test. It likely will reignite or stall anti-government momentum fueled by passage of the first such plan in 1989 in Catron County, N.M.

More than 100 communities nationwide have adopted or are considering similar plans. Boundary County adopted its plan in 1992.

“A decision on this ordinance will reverberate throughout the West,” said attorney Scott Reed, who represents the environmental groups.

Wednesday Karen Budd-Falen - a Cheyenne, Wyo., attorney and legal godmother to the wise use movement - told the court the plan means less than opponents suggest.

Sure, county commissioners want federal and state land and wildlife managers to seek approval from them before converting private land to public, adding wilderness areas, or reducing timber harvests, she said, but commissioners won’t force such action.

“The plan merely expresses the policies of the county” and seeks better communication between commissioners and federal agencies, Budd-Falen said.

“Congress designates wilderness areas; commissioners know that.”

Reed argued the plan was written as law, intended as a “shot across the bow” to state and federal agencies.

The plan uses the word ‘shall’ 27 times.

“Literally, it says nothing shall happen out there on public lands without their approval,” Reed said.

“What they’re saying is ‘we, the county, are in charge.”’

Commissioners since have softpedaled their intentions to save the plan, he said.

“This is crossed-fingers legislation,” Reed said.

Justices occasionally diffused tension Wednesday with comedy at the expense of the lawyers.

Boundary County Prosecutor Randall Day told the court the ordinance would not hurt people.

Enforcement would be limited to lawsuits against federal agencies.

Justice Gerald Schroeder asked if that mean the county would never seek money in damages from federal officials.

Day stood motionless.

After 30 seconds of silence, he said “I hadn’t contemplated that.”

Peter Coppleman, a U.S. Justice Department attorney who joined Reed, argued the plan’s strong language had created “grave, grave concerns” among federal agencies.

The plan “reads like a seamless web of defiance and tends to encourage unlawful resistance by ranchers, loggers and miners,” he said.

Schroeder smiled from the bench.

“I have a hard time imagining the federal government timorously backing away from a position because it’s afraid to stand up to a local board,” Schroeder said.

Both sides said they would appeal an unfavorable ruling.

Ina Pluid, the Bonners Ferry resident who three years ago gathered 400 signatures on a petition asking for the plan, said she was proud commissioners took the plan this far.

“I came from a timber family and we’re sick of what’s happened,” she said.

Dave Bodner, one of the residents who filed the lawsuit, said he thought Boundary County residents had had enough.

“People are tired of this now,” he said.

“It didn’t do what they were told it would and now it’s taking too long to get resolved.”