Local involvement in federal planning protects community interestsWritten by Saige Albert
Wyoming attorney Karen Budd-Falen explains that federal statutes provide for locally elected bodies to participate in many planning processes, largely those defining long term land use on BLM or Forest Service lands.
The National Environmental Policy Act (NEPA) calls for either an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) for all projects affecting the quality of the human environment, and the federal government is required to consider alternatives and the impacts of custom and culture, or the environment, economy of the local community and the citizens in that community.
In these assessments, NEPA provides for the increased involvement of local governments above and beyond the involvement of average citizens to offer that information to the document.
Cooperating agency status
In land use planning processes, local governments have the ability to insert data into a plan, as well as write alternatives, in the position as a cooperating or coordinating agency.
“A cooperating agency is an eligible government entity that has entered into a written agreement with the BLM establishing cooperating agency status in the planning process,” says Sublette County Commissioner Joel Bousman. “Cooperating agency status is established through a Memorandum of Understanding (MOU).”
Bousman explains that the MOU establishes the authority and responsibilities of the BLM, as well as those of the cooperating agency, and the obligations of each group.
“Locally elected bodies can take part as a cooperating agency,” adds Budd-Falen. “They get to participate in holding joint hearings, participating in the studies, defining alternatives and requiring alternatives that truly protect the local citizens and consider the local economy.”
“We are invited to help the BLM formulate the alternatives and suggest land use allocations,” explains Bousman. “We can tell BLM within our resource area to make sure to allocate land for livestock grazing, recreation, or whatever our constituents deem important.”
Budd-Falen adds that the capacity of local government participation extends beyond only providing environment for custom, culture and the economy but can extend into the realm of protection for the environment, looking at the impacts of soil, water and air quality, as well as things like the health of the forests.
Her emphasis rests on the idea that is the responsibility of the local government to actively participate and become involved in these processes.
Citizens vs. cooperators
The federal government is also bound by federal law to respond to the alternatives provided by local governments, whereas they are not obligated to provide any written response or comment from the input of general citizens.
“As a general citizen, I am allowed to answer the scoping, to make suggestions on the issues in the EIS, and to comment on the EIS or EAs – that’s it,” says Budd-Falen. “The government doesn’t have to respond, and they are supposed to consider my comments, but they don’t have to write responses to my comments.”
“As a cooperating agency, they don’t necessarily have to take your suggestions, but if they aren’t going to adopt the alternative, they have to tell you why,” says Budd-Falen. “They have to have legitimate reasons why.”
Bousman adds that the cooperating agencies also help to determine the effects of the alternative they have developed and analysis for the direct and indirect consequences of the alternatives.
The suggested role of cooperators is to provide advice on the proposed planning criteria, including local government comprehensive plan elements and the state and local policies that may apply, said Bousman.
Along with providing information to be included in the studies and the documents, Budd-Falen adds that by participating in federal government processes, local governments are given standing to issue complaints or objections in the future.
“Both the ninth and tenth circuit court of appeals have said that unless you actively participate and your information is provided to the federal agencies, you don’t have standing to complain when the decision is issued, and you don’t have standing to appeal or litigate,” says Budd-Falen. “You have to put your information it – its up to you.”
She explained that the Federal Land Policy and Management Act uses the word “coordination” to describe the interaction, but encouraged people to not get hung up on the word that is used.
When speaking on the difference between cooperation and coordination, Budd-Falen comments, “It doesn’t matter what you call it, it matters what you do.”
Get involved in planning
“We really need to actively participate with federal agency actions to get them to understand who we are,” says Budd-Falen.
Bousman also mentions that the county commissioners have limited authority, only granted under state statute to participate, saying, “Unless the BLM is doing something that violates state statutes, we don’t have much authority.”
In order to have input in the federal land use planning processes, participation of local governments as a cooperating agency is important.
Budd-Falen notes, “It’s not up to the federal government to wait around for you to participate, it’s is up to the local government to enforce their right of participation.”