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September 2, 2010

Dr. Benjamin Tuggle

Ms. Joy Nicholopoulos

U.S. Fish and Wildlife Service

Post Office Box 1306

Albuquerque, NM 87103

Re: Response to Letter Regarding Cooperating Agency Status

Dear Dr. Tuggle and Ms. Nicholopoulos:

On behalf of the member counties of the Coalition of Counties for Stable Economic Growth, this letter responds to the August 9, 2010 letter regarding the Counties’ requests for cooperating agency status as part of the National Environmental Policy Act (“NEPA”) processes related to the Mexican wolf, jaguar and other threatened or endangered species and critical habitat designation processes under the Endangered Species Act (“ESA”). While your letter indicates willingness to work with the Counties as part of the NEPA and ESA processes, the Counties are concerned that they are not being given their full rights of participation as required by federal law and regulation.

According to your August 9, 2010 letter:

“We [U.S. Fish and Wildlife Service (“FWS”)] welcome your participation in these proceedings during the public process. You will have the opportunity to comment on the draft NEPA documents, proposed critical habitat designations, draft recovery plans, and draft economic analysis documents, and to present other information to the U.S. Fish and Wildlife Service at any time.”

While the Counties appreciate the offer to “merely” comment, it is our legal position that NEPA and other federal statutes and other federal statutes provides significantly more opportunities for local government participation. Specifically:

All federal agencies shall prepare an environmental impact statement (“EIS”) or an environmental assessment (“EA”), (i.e. a NEPA document) for "every recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(c) (2009).

Such EIS or EA shall include, among other things, alternatives to the proposed action. 42 U.S.C. § 4332(C)(iii) (2009).

Copies of comments by State or local governments must accompany the EIS or EA throughout the review process. 42 U.S.C. § 4332(c) (2009).

Federal agencies shall “consult [] early with appropriate state and local agencies and Indian tribes and with interested private persons and organizations when its own involvement is reasonably foreseeable.” 40

C.F.R. § 1501.2(d)(2) (2009).

Local governments shall be invited to participate in the scoping process. 40 C.F.R. § 1501.7(a)(1) (2009).

Federal agencies shall cooperate “to the fullest extent possible to reduce duplication” with State and local requirements. Cooperation shall include:

(1) Joint planning processes

(2) Joint environmental research and studies

(3) Joint public hearings (except where otherwise provided by statute)

(4) Joint environmental assessments.

40 C.F.R. § 1506.2(b) (2009).

Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements, unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include joint environmental impact statements. In such cases one or more Federal agencies and one or more State or local agencies shall be joint lead agencies. Where State laws or local ordinances have environmental impact statement requirements in addition to but not in conflict with those in NEPA, Federal agencies shall cooperate in fulfilling these requirements as well as those of Federal laws so that one document will comply with all applicable laws. 40 C.F.R. § 1506.2(c) (2009)

Federal, State, or local agencies, including at least one Federal agency, may act as joint lead agencies to prepare an environmental impact statement. 40 C.F.R. § 1501.5(b) (2009).

Any Federal agency, or any State or local agency or a private person substantially affected by the absence of lead agency designation, may make a written request to the potential lead agency that a lead agency be designated. 40 C.F.R. § 1501.5(d) (2009).

A State or local agency of similar qualifications [one who has special expertise]. . . may by agreement with the lead agency become a cooperating agency. 40 C.F.R. § 1508.5 (2009).

To better integrate EIS into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law. 40

C.F.R. § 1506.2(d); 40 C.F.R. § 1506.2 (2009).

Environmental impact statements must discuss any "inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the [EIS] should describe the extent to which the agency would reconcile its proposed action with the plan or law.” 40 C.F.R. § 1506.2(d) (2009).

Appropriate mitigation measures must be included in the EIS. 40 C.F.R. § 1502.14(f) (2009). Mitigation includes (a) avoiding the impact altogether by not taking a certain action or parts of an action, (b) minimizing impacts by limiting the degree or magnitude of an action and its implementation,

(c) rectifying the impact by repairing, rehabilitating, or restoring the affected environment, (d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action, and

(e) compensating for the impact by replacing or providing substitute resources or environments. 40 C.F.R. §1508.20 (2009).

Federal agencies shall circulate the entire draft and final EIS, or if the EIS is unusually long, a summary of the EIS, to State and local agencies authorized to develop and enforce environmental standards. 40 C.F.R. § 1502.19(a) (2009).

Thus, in this case, the county members of the Coalition of Counties, by reason of their special expertise with regard to the environment, economic stability and the custom and culture of their citizens are requesting that they be recognized as “cooperating agencies” pursuant to 40 C.F.R. § 1508.5 (2009).

Additionally, the Intergovernmental Cooperation Act, 31 U.S.C. §§ 6501-6506 and companion Executive Order 12372, require all federal agencies to consider local viewpoints during the planning stages of any federal project. 31 U.S.C. § 6506(c) (2009). According to that Act and its interpreting case law:

The obligation of federal agencies to consider local government concerns is a legally enforceable right. City of Waltham v. U.S. Postal Service, 11 F.3d 235, 245 (1st Cir. 1993).

The consideration of local government plans and policies must occur on the record. Federal agencies have an affirmative duty to develop a list of factors which support or explain an agency’s decision to act in disharmony with local land use plans. Village of Palatine v. U.S. Postal Service, 742 F. Supp. 1377, 1397 (N.D. Ill. 1990).

I hope this letter clarifies the positions of the county governments who are members of the Coalition of Counties. The decisions of the FWS under the Endangered Species Act will have a significant impact on the County members, and these members look forward to working as cooperators with the FWS as allowed by federal law and regulation.

Should you have any questions, please do not hesitate to contact me.

Sincerely,

/s/Karen Budd-Falen

Karen Budd-Falen BUDD-FALEN LAW OFFICES, LLC

KBF:vld

xc: Howard Hutchinson - Coalition of Counties via e-mail New Mexico Cattle Growers’ Association via e-mail Arizona Game and Fish Department via U.S. Mail New Mexico Department of Game and Fish via U.S. Mail USDA - APHIS, Wildlife Services via U.S. Mail