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Revised March 4, 2000 COUNTY PERSPECTIVES ON INVOLVEMENT IN THE BLM RESOURCE PLANNING AND NEPA PROCESSES The BLM is obligated to enter into coordinated planning with local governments in two distinct federal acts. The Federal Land Policy and Management Act (FLPMA) governs the development of resource management plans or management framework plans. The National Environmental Policy Act (NEPA) governs the process of determining the significance of impacts on the environment by federal actions. Counties may request to be recognized by Bureau of Land Management (BLM) as a joint lead or cooperating agency in actions affecting the environment within the County. The decision to request or allow a county to be a joint lead or cooperating agency belongs to the line officer in charge. If a county disagrees with the decision it can appeal through the BLM administrative process and/or directly to the Council on Environmental Quality (CEQ).1 Federal Land Policy and Management Act Process It is significant to note that FLPMA provides explicit directives for the BLM to coordinate public land use planning with county governments, and to ensure that federal land use plans are consistent with local plans to the maximum extent possible. The statute details the BLM's mandate as follows: (c)In the development and revision of land use plans the Secretary shall... (9) to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other Federal departments and agencies and of the State and local governments within which the lands are located, including, but not limited to, the statewide outdoor recreation plans developed under the Act of September 3, 1964 (78Stat.897), as amended, and of or for Indian tribes by, among other things, considering the policies of approved State and tribal land resource management programs. In implementing this directive, the Secretary shall, to the extent he finds practical, keep apprised of State, local, and tribal land use plans; assure that consideration is given to those State, local, and tribal plans that are germane in the development of land use plans for public lands; assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans, and shall provide for meaningful public involvement of State and local government officials, both elected and appointed, in the development of land use programs, land use regulations, and land use decisions for public lands, including early public notice of proposed decisions which may have a significant impact on non-Federal lands. Such officials in each State are authorized to furnish advice to the Secretary with respect to the development and revision of land use plans, land use guidelines, land use rules, and land use regulations for the public lands within such State and with respect to such other land use matters as may be referred to them by him. Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act. (f)The Secretary shall allow an opportunity for public involvement and by regulation shall establish procedures, including public hearings where appropriate, to give Federal, State, and local governments and the public, adequate notice and opportunity to comment upon and participate in the formulation of plans and programs relating to the management of the public lands.2 [Emphasis added] FLPMA clearly lays out mandates for coordination with local government plans, resource related policies, and programs. The regulations issued by the BLM to implement FLPMA are very detailed and specific pertaining to the coordination with county governments and protection of custom, culture, and economic and community stability. BLM regulations use the terms “consistent” and “local government” which are defined: (c)Consistent means that the Bureau of Land Management plans will adhere to the terms, conditions, and decisions of officially approved and adopted resource related plans, or in their absence, with policies and programs, subject to the qualifications in Section 1615.2 of this title. (e)Local government means any political subdivision of the State and any general purpose unit of local government with resource planning, resource management zoning, or land use regulation authority.3 Relevant plans of the BLM, which are subject to coordination with county government and county land use plans, are called “resource management plans.” However, amendments to older plans such as management framework plans are also subject to coordination requirements.4 Approval of a resource management plan is considered a major federal action significantly affecting the quality of the human environment. Thus, the NEPA process also applies.5 BLM regulations are specific in requiring coordination6 and consistency between federal land use plans and local plans. If conflicts exist, or local plans do not exist, the regulations require BLM to make every reasonable effort to resolve the conflicts and be consistent with existing local policies and programs. In order to convey the spirit as well as the letter of the regulations, pertinent elements are quoted below: Section 1610.3-1 Coordination of planning efforts. (a)In addition to the public involvement prescribed by Section 1610.2 of this title the following coordination is to be accomplished with other Federal agencies, State and local governments, and Indian tribes. The objectives of the coordination are for the State Directors and District and Area Managers to keep apprised of non-Bureau of Land Management plans; assure that consideration is given to those plans that are germane in the development of resource management plans for public lands; assist in resolving, to the extent practicable, inconsistencies between Federal and non-Federal government plans; and provide for meaningful public involvement of other Federal agencies, State and local government officials, both elected and appointed, and Indian tribes in the development of resource management plans, including early public notice of proposed decisions which may have a significant impact on non-Federal lands. (b)State Directors and District and Area Managers shall provide other Federal agencies, State and local governments, and Indian tribes opportunity for review, advice, and suggestion on issues and topics which may affect or influence other agency or other government programs. To facilitate coordination with State governments, State Directors should seek the policy advice of the Governor(s) on the timing, scope and coordination of plan components; definition of planning areas; scheduling of public involvement activities, and the multiple use opportunities and constraints on public lands. State Directors may seek written agreements with Governors or their designated representatives on processes and procedural topics such as exchanging information, providing advice and participation, and time-frames for receiving State government participation and review in a timely fashion. If an agreement is not reached, the State Director shall provide opportunity for Governor and State agency review, advice and suggestions on issues and topics that the State Director has reason to believe could affect or influence State government programs. (c)In developing guidance to District Mangers, in compliance with section 1611 of this title, the State Director shall: (1)Ensure that it is as consistent as possible with existing officially adopted and approved resource related plans, policies or programs of other Federal agencies, State agencies, Indian tribes and local governments that may be affected as prescribed by Section 1610.3-2 of this title; (2)Identify areas where the proposed guidance is inconsistent with such policies, plans or programs and provide reasons why the inconsistencies exist and cannot be remedied; and (3)Notify the other Federal agencies, State agencies, Indian tribes or local governments with whom consistency is not achieved and indicate any appropriate methods, procedures, actions and/or programs which the State Director believes may lead to resolution of such inconsistencies. (d)A notice of intent to prepare, amend, or revise a resource management plan shall be submitted, consistent with State procedures for coordination of Federal activities, for circulation among State agencies. This notice shall also be submitted to Federal agencies, the heads of county boards, other local government units and Tribal Chairmen or Alaska Native Leaders that have requested such notices or that the responsible line manager has reason to believe would be concerned with the plan or amendment. These notices shall be issued simultaneously with the public notices required under Section 1610.2(b) of this title. (e)Federal agencies, State and local governments and Indian tribes shall have the time period prescribed under Section 1610.2 of this title for review and comment on resource management plan proposals. Should they notify the District or Area Manager, in writing, of what they believe to be specific inconsistencies between the Bureau of Land Management resource management plan and their officially approved and adopted resources related plans, the resource management plan documentation shall show how those inconsistencies were addressed and, if possible, resolved. [Emphasis added] Section 1610.3-2. Consistency requirements. (a)Guidance and resource management plans and amendments to management framework plans shall be consistent with officially approved or adopted resource related plans, and the policies and programs contained therein, of other Federal agencies, State and local governments and Indian tribes, so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public land, including Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise, and other pollution standards or implementation plans. (b)In the absence of officially approved or adopted resource-related plans of other Federal agencies, State and local governments and Indian tribes, guidance and resource management plans shall, to the maximum extent practical, be consistent with officially approved and adopted resource related policies and programs of other Federal agencies, State and local governments and Indian tribes. Such consistency will be accomplished so long as the guidance and resource management plans are consistent with the policies, programs and provisions of Federal laws and regulations applicable to public lands, including, but not limited to, Federal and State air, water, noise and other pollution standards or implementation plans. (c) State Directors and District and Area Managers shall, to the extent practicable, keep apprised of State and local governmental and Indian tribal policies, plans, and programs, but they shall not be accountable for ensuring consistency if they have not been notified, in writing, by State and local governments or Indian tribes of an apparent inconsistency. (d) Where State and local government policies, plans, and programs differ, those of the higher authority will normally be followed. (e) Prior to the approval of a proposed resource management plan, or amendment to a management framework plan or resource management plan, the State Director shall submit to the Governor of the State(s) involved, the proposed plan or amendment and shall identify any known inconsistencies with State or local plans, policies or programs. The Governor(s) shall have 60 days in which to identify inconsistencies and provide recommendations in writing to the State Director. If the Governor(s) does not respond within the 60-day period, the plan or amendment shall be presumed to be consistent. If the written recommendation(s) of the Governor(s) recommend changes in the proposed plan or amendment which were not raised during the public participation process on that plan or amendment, the State Director shall provide the public with an opportunity to comment on the recommendation(s). If the State Director does not accept the recommendations of the Governor(s), the State Director shall notify the Governor(s) and the Governor(s) shall have 30 days in which to submit a written appeal to the Director of the Bureau of Land Management. The Director shall accept the recommendations of the Governor(s) if he/she determines that they provide for a reasonable balance between the national interest and the State's interest. The Director shall communicate to the Governor(s) in writing and publish in the FEDERAL REGISTER the reasons for his/her determination to accept or reject such Governor's recommendations.7 [Emphasis added] County governments should keep in contact with the Governor of their state to assure the county needs are considered. However, if the BLM has been informed regarding county needs, involvement, and plans, the agency should coordinate directly with the county government. The regulations cited above prescribe early involvement of local government in BLM planning activities. This requirement is reinforced in the next section of the regulations: At the outset of the planning process, the public, other Federal agencies, State and local governments and Indian tribes shall be given an opportunity to suggest concerns, needs, and resource use, development and protection opportunities for consideration in the preparation of the resource management plan.8 [Emphasis added] When the BLM begins the process to amend or develop a resource management plan, the agency is required to consider the ability of the resource area to respond to local needs when formulating reasonable alternatives. The regulations state: Factors to be considered may include, but are not limited to: (e)Specific requirements and constraints to achieve consistency with policies, plans and programs of other Federal agencies, State and local government agencies and Indian tribes; (g)Degree of local dependence on resources from public lands.9 [Emphasis added] Clearly, the BLM must consider the impact of its actions on the economies and communities of the counties involved. Further, after alternatives have been developed, the BLM “...shall estimate and display the physical, biological, economic, and social effects of implementing each alternative considered in detail.”10 [Emphasis added] The completed draft resource management plan and associated environmental impact statement “...shall be provided for comment to the Governor of the State involved, and to officials of other Federal agencies, State and local governments and Indian tribes that the State Director has reason to believe would be concerned.”11 Upon implementation, the plan shall be monitored to determine whether it needs to be amended.12 [Emphasis added] State and local governments can be the most beneficial in this portion of the process. Having resident monitoring and reporting can free up agency personel, approch “real time” reporting of data and reduce the costs of implementation. Like the BLM, local governments are required to prepare annual budgets. Having an action brought forward after the county budget has been completed presents fiscal and staffing problems that are not easily overcome. The same holds true from the BLM side, i.e., the Area, District or State Office may not have properly projected their budget requirements to fund county cooperating agency tasks. From this standpoint alone, it seems logical that the respective responsible officials would have consultations prior to creation of their respective budgets. This was the purpose of the Memorandum of Understanding (MOU) executed between Catron County, New Mexico and the Gila National Forest. This MOU not only sets out the procedures for completion of environmental documents under the NEPA and Forest Planning coordination with the county but also sets up communication lines to keep each party informed in “real time.” This avoids surprise actions for both the Forest Service and the county. This was done in recognition of the fact that most conflicts are the result of missed communication opportunities. The Chief of the Forest Service claims that the Catron County MOU with the Gila National Forest as evidences the level of cooperation that the Forest Service recognizes as the intent of federal legislation and Forest Service regulations.13 The legislation that lays out the requirements for the Forest Planning process was passed by the same Congress that authored the FLPMA. National Environmental Policy Act Process Much activity occurs before an Environmental Impact Statement (EIS) is prepared. Integration of local governments into the process during scoping is not the earliest possible time a State or local government can become involved. Informal and formal communication of intentions prior to an action being identified for implementation can precede scoping by years. It is obvious by the above statutory and regulatory language that there should be a close and continuous working relationship between the BLM, State and local governments. As stated above, an MOU delineating the process responsibilities of each party would go a long way towards heading off disagreements and misunderstandings. The National Environmental Policy Act Handbook (NEPAH) directs the BLM NEPA process. There are many reasons beyond heading off potential conflicts in coordinated resource management planning and the NEPA processes. For example: A.General.Existing environmental analyses should be used in analyzing impacts associated with a proposed action to the extent possible and appropriate. This approach builds on work that has already been done, avoids redundancy, and provides a coherent and logical record of the analytical and decision making process.14 In order to avoid redundancies in analysis and reduce the bulk of a NEPA document, NEPAH suggests: F.Incorporation By Reference (40 CFR 1502.21). 1.....Special technical or professional studies and analyses prepared by the BLM, other Federal agencies, State, local or tribal governments, or private interests may be incorporated by reference.15 [Emphasis added] State or local government’s land plans, policies, laws and ordinances easily fall into this category. Many land plans are developed through professional or academic studies that will lend to fulfilling the intent of the above regulations. Without a high level of interaction with State and local governments, BLM personnel are likely to not even know of the existence of studies and documents that can save their offices considerable time and money when preparing environmental documents. In addition to avoiding the costly and time-consuming situations stated above, one of the primary purposes for early involvement of State and local governments is avoiding major rewrites of draft NEPA documents that failed to consider potential significant impacts. It is at the level of preparation of an Environmental Assessment (EA) that an “interdisciplinary (I.D.) review of proposed actions”16 can involve State and local governments to “determine if any impacts are significant.”17 The amending of the Federal Advisory Committee Act in 1995 opens the door to State or local government elected officials or their designees to be I.D. team members. “The EA process need not be time-consuming nor complicated. The level of assessment should be commensurate with the anticipated impacts and the degree of public concern.”18 [Emphasis added] What better way to determine anticipated impacts on the local social or economic structures or identify the degree of public concerns than to have locally elected representatives participate in the decision making process? The Handbook suggests this by saying: B.Environmental Assessment Procedures. 2....Agencies with legal jurisdiction or special expertise, applicants, and the public should be involved, to the extent practical, in the preparation of the EA (40 CFR 1501.4(b)).19 In support of the suggestion for an MOU is the following: B.Environmental Impact Statement Procedures. 1.c.(2)Agencies with special expertise or interest in the subject should be notified in order to alert them of potential consultation and coordination needs and to invite them to be cooperating agencies, if appropriate (see Paragraph B.1.g below). Memoranda of understanding or interagency agreements which provide for coordination and consultation should be adhered to or developed, where appropriate, to help guide such activities.20 [Emphasis added] 1.g.Identify Cooperating Agencies (40 CFR 1501.5, 1501.6, 1508.5 and 1508.16; 516 DM 1.5). The BLM, as lead agency, is responsible for establishing liaison with all Federal, State, local, and Tribal agencies that have jurisdiction by law or special expertise with respect to any environmental impact involved in a proposed action and for requesting their participation as a cooperating agency on an EIS, as appropriate.21 [Emphasis added] The avoidance of redundancy and the reduction of the bulk of environmental documents is not the only reason for incorporation of local government concerns. It may also head off litigation of disagreements. In that context the Handbook contains the following requirement: C.3.e.(4)Relationship to Non-BLM Policies, Plans, and Programs. Explain how the proposed action relates to the policies, plans, programs, controls and management practices of other Federal, State and local agencies and private organizations. Any land use planning or zoning statutes or requirements which may affect or limit the proposal should be discussed.22 [Emphasis added] Presidential Executive Order 12866 - Regulatory Planning and Review (September 30, 1993) EO 12866 further strengthens and emphasizes the need for Federal agencies to develop close working relationships with state and local governments. The Coalition has requested in comments to federal agencies, for demonstration that this order has been complied with. In two years of requests we have never received a reply. The following provides examples of the content of the order: Introduction The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves health, safety, environment, and well being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory policies that respect the role of State. local and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a system today. Section 1(b)(9) Wherever feasible, agencies shall seek views of appropriate State. local and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. In addition, as appropriate, agencies shall seek to harmonize Federal regulatory actions with related State, local and tribal regulatory governmental functions. Section 5(b) State, local and tribal governments are specifically encouraged to assist in the identification of regulations that impose significant or unique burdens on those governmental entities and that appear to have outlived their justification or be otherwise inconsistent with the public interest. Section 6(a)(l) In particular, before issuing a notice of proposed rule making, each agency should, where appropriate, seek the involvement of those who are intended to benefit from and those who are expected to be burdened by any regulation (including, specifically State. local and tribal officials). . . . Each agency also is directed to explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rule making. [Emphasis added] CONCLUSION The Coalition, as stated in our letterhead, is dedicated to “Working together for responsible management.” We have recognized that the era of county government maintaining roads and painting the courthouse has passed. We must now shoulder greater responsibilities to our citizens and for our environments. In the west, where large percentages of our jurisdictions contain federal lands, we can no longer ignore our prescribed roles in the land planning processes. This should not be an adversarial role but rather a fulfillment of the Constitutional principles of checks, balances, and above all, protection of the unalienable rights of the citizens. Failures of local governments and the BLM to coordinate and cooperate in fulfilliment of the Executive Order and BLM statutory mission and obligations for involvement can create an atmosphere of mistrust and controversy that contains no benefits. The terms cooperate, coordinate and consult denote a desire by Congress that federal, state and local governments work together for the general welfare of all citizens with special emphasis on localized needs. A county’s participation as a joint lead agency or at a minimum, cooperating agency in the BLM decision making processes can only produce positive benefits. We offer our assistance to the BLM, as we have done successfully with other federal agencies, to create mutual education and coordination opportunities that will benefit our citizens and the federal land resources we are dependent on. 4 43 USC 1712(d); 43 CFR 1610.8(a)(3)(ii) 6 Coordinate is defined as “equal, of the same rank, order, degree or importance; not subordinate.” Blacks Law Dictionary 303 (5th ed. 1979). 7 43 CFR 1610.3-1(a),(b),(c),(d),(e); 1610.3-2(a),(b), (c),(d),(e). 13 Declaration of Jack Ward Thomas, Chief of the Forest Service, submitted in the case, U.S. v. Nye County. | ||
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