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Road closure ordinance challenged in court

U.N.-free zone, public lands title measures also challenged.
Richard Hanners

Blue Mountain Eagle

Published on September 4, 2018 5:01PM

Mark Webb, seen here at a past Grant County Court meeting, has challenged in court a county road closure ordinance and two citizen initiatives.

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Mark Webb, seen here at a past Grant County Court meeting, has challenged in court a county road closure ordinance and two citizen initiatives.

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A complaint recently filed in Grant County Circuit Court by Mark Webb challenges the validity of two measures passed by county voters in 2002 and an ordinance passed by the county court in 2013.

Following an executive session on Aug. 29, the Grant County Court unanimously directed county attorney Ron Yockim to respond to Webb and defend the actions.

Measure 12-37, a declaration demanding that the United Nations not act within Grant County, was passed by county voters May 21, 2002, by 1,326-959 with 53 percent turnout.

Measure 12-40, a petition to Congress seeking the title transfer of all public lands in Grant County to the county, was passed Nov. 5, 2002, by 1,796-1,436 with 76 percent turnout.

Ordinance 2013-01, which the county court passed unanimously May 23, 2013, ordained that all roads, trails, stock driveways and by-ways crossing public lands be kept open to the public for historic and customary uses unless authorized for closure by the county court and the county sheriff.

According to County Judge Scott Myers, Yockim had recommended it be passed as a resolution, not an ordinance.

The complaint

Webb requested a declaration by the court that the measures and the ordinance are invalid due to procedural errors in adoption and because they conflict with paramount state law and the state and U.S. constitutions.

In his Aug. 21 complaint, Webb noted that the United States ratified the U.N. Charter as a treaty, and the U.S. Constitution prohibits states and counties from making or changing treaties. He also noted that Measure 12-37 did not address a matter of county concern, as required by state law for citizen initiatives, and the measure conflicts with and is preempted by the U.S. Constitution.

By petitioning Congress, Measure 12-40 was an administrative act, not a legislative act, and therefore was outside the scope of the state’s referendum or initiative process, Webb said in his complaint. He also noted that the measure did not approve or reject an ordinance previously enacted by the county court or propose a new ordinance.

The 2013 road ordinance also does not address a matter of county concern, Webb said in his complaint. As a result of the U.S. Constitution, the Federal Land Policy and Management Act and the National Forest Management Act, Grant County is preempted from regulating federally owned roads, he said.

The exception were roads authorized by Revised Statute 2477 of the 1866 Mining Act and other rights-of-way established on federal public lands before the creation of the National Forest System, Webb said.

The road ordinance was also preempted by and conflicted with the 1859 Oregon Admission Acts, which stated that Oregon “shall not interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing title in said soil to bona fide purchasers thereof,” Webb said in his complaint.

Past challenges

Webb, a former county judge, has been successful in challenging county actions in the past. Most recently, he challenged Measure 12-72, the Second Amendment Preservation Ordinance. On June 29, Grant County Circuit Court Judge William D. Cramer Jr. ruled that the measure was preempted by state law and that the measure’s language would have confused voters. As a result, the measure will not appear on the November ballot.

Webb also challenged the establishment of a Grant County Public Forest Commission, which was created following a 1,634-1,579 vote in favor of the commission on Nov. 5, 2002. The initiative stated that “the people of Grant County ... shall assume responsibility to manage public lands within Grant County by creating a commission ... to create and administer policies for lands and natural resources in the public domain within Grant County.”

Webb requested a judicial review of the commission in March 2016. Cramer informed the county clerk in September that he intended to nullify the commission and issued his full opinion in November.

Cramer said the county was free to pass a measure to establish a forest commission to develop plans to manage public lands if and when the lands were owned by the county, or to advise the county so long as the measure clearly stated the commission’s limits. He also ruled that the measure must meet procedural requirements and not violate other “superior or paramount laws.”


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