Chapter 10A The Role of Cooperating Agencies and Cooperative Federalism in Public Lands Decisions
| Jurisdiction | United States |
JASON L. DEFOREST is Assistant Attorney General with the Office of the Attorney General in Utah. Mr. DeForest received his juris doctorate degree from the University of Nevada Las Vegas, William S. Boyd School of Law in 2013, where he served as the Editor in Chief for the Nevada Law Journal. Following law school, Mr. DeForest worked as a shareholder for a large regional firm, representing corporate clients in a wide variety of litigation areas including water law, wildfire suppression reimbursement, and contract law. Mr. DeForest is currently working as an Assistant Attorney General for the State of Utah and the Utah Public Lands Policy Coordinating Office. His focus is primarily on habitats and wildlife, with specific emphasis on Endangered Species litigation and public land management policy. Outside of his work with wildlife and public lands, Mr. DeForest enjoys camping, fishing, and hiking with his wife and three children.
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I. Introduction
II. An Overview: Cooperative Federalism, Cooperating Agencies and Coordination
a. Cooperative Federalism and Public Land Management
b. When States and Local Government Serve as Cooperating Agencies
c. Coordination and Consistency
i. Coordinating Federal, State and Local Plans under NFMA and FLPMA
ii. NEPA's Duplication and Inconsistency Requirements
III. Cooperative Federalism and Public Lands Management Today
IV. Cooperative Federalism in the Future
V. Conclusion
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I. Introduction
Conceptually, the phrase "cooperative federalism" is not overly complex. It denotes a shared governance among and between the federal government and sovereign entities such as the states, tribes, and local governments. In practice, however, application of the concept has proven difficult in the realm of public land management. Political influences and flexible regulatory standards allow for regular shifts in the power dynamic, causing some entities to lose faith in the system altogether. This is problematic in a system where cooperation is vital for achieving federal land management objectives. Wildlife management, for example, absolutely requires cooperation with state officials. And yet, states are often made to feel that their input is irrelevant or inconsequential, even when "cooperation" and "coordination" are statutorily required. This results in confusion, mistrust, and inefficiencies, often at the expense of the resource itself.
Cooperative federalism in public land management is particularly important in states such as Utah, where much of the land within the State is controlled by the Federal government.2 Using recent changes to the Bureau of Land Management's ("BLM") land use plans for the greater sage grouse as a case study, this paper explores the topic of "cooperative federalism" in public land management and how regulatory changes, particularly under prior presidential administrations, effect such management.
The paper begins with an overview of cooperative federalism and public land management, with particular emphasis on the National Forest Management Act ("NFMA"), the Federal Land Policy Management Act ("FLPMA"), and the National Environmental Policy Act ("NEPA"). Next, the paper discusses the nuances and expectations associated with "cooperating agency" status under NEPA. The paper then discusses how coordination and cooperation occur in practice, with specific discussion regarding cooperative federalism under NEPA, NFMA, and FLPMA. Finally, the paper concludes with a discussion of cooperative federalism now and in the future, with thoughts for potential changes.
II. An Overview: Cooperative Federalism, Cooperating Agencies and Coordination
a. Cooperative Federalism and Public Land Management
The term federalism, absent any political or subjective connotation, describes a distribution of power between a national government and a regional or state government.3 In the United States,
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a federalist system of government, power is distributed among the federal and state governments.4
Cooperative federalism, then, is a form of shared governance among and between the federal government and states, tribes and local governments. It "anticipates a partnership between the States and the Federal Government, animated by a shared objective[.]"5 In practice, it usually involves federal agencies working with states and their political subdivisions to implement federal laws and programs.6
This concept of cooperative federalism is common in environmental law and often arises in the context of pollution control and statutes that address some kind of environmental contamination, including the Clean Water Act and Clean Air Act.7 Under these statutes, federal agencies delegate authority to states to implement certain statutory provisions in accordance with federal minimum standards along with funding to do so.8 States are usually free to impose restrictions that are more stringent than federal standards but not less.9 The federal government retains oversight of state-led programs and often retains the right to veto state action or revoke a state's delegated authority.10
This paper focuses on a broader and more nuanced form of cooperative federalism that takes shape in the context of federal land management. Management of public lands is inherently place-based, complete with jurisdictional boundaries and private, tribal and state neighbors.11 As a result, federal agencies involve state and local governments in public lands management differently than pollution control. "Federal law seldom excludes all state participation, but the state roles in the various public natural resources law programs cover a spectrum from dominant partner to consultant."12
As the federal government moved from viewing public lands as a resource to be disposed of or utilized for economic purposes such as grazing and mining, and instead as an asset to be managed for more diverse uses, questions arose on how states and local governments would fit in to this regulatory scheme.13 In the late 1960s and 1970s, with the rise of the modern
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environmental movement, Congress passed several laws requiring the inventory and planning of public lands.14
Two such laws, NFMA and FLPMA, include provisions, discussed in greater detail below, that required the Forest Service and the Bureau of Land Management to consider state and local land use plans and policies when preparing federal land plans.15 Additionally, NEPA, a statute requiring federal agencies to consider the impacts of major federal actions on public lands and elsewhere, contemplates a role for state and local governments in this process.16 As discussed in more detail below, unlike in the context of pollution control, where states assumed authority for implementing federal laws, NEPA, FLPMA and NFMA require federal agencies to involve, consider and consult with state and local government when making land management decisions.17
Amid these statutory changes, the Sagebrush Rebellion—a movement in the 1970s and 1980s in the American west to transfer over 300 million acres of BLM lands to states—prompted federal regulators to provide states and their political subdivisions a more substantial role in federal public land management.18 While the movement did not lead to a transfer of federal lands, it did result in a "heightened willingness of the federal government to work with states" and "an increased capacity of the states to offer substantive expertise and clearly articulated policies supported the rise of this informal, administrative federalism."19
Ultimately, while federal agencies may consult states and local governments, the federal government retains full authority to manage federal public lands in accordance with guiding law.20 While NEPA, FLPMA and NFMA contemplate involving non-federal agencies in decision-making and consideration of state and local plans and policies in planning and
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permitting, management decisions are ultimately made by the federal agency managing those resources.21
b. When States and Local Government Serve as Cooperating Agencies
In 1969, Congress passed NEPA and with it declared a new national policy to, among other things, "encourage productive and enjoyable harmony between man and his environment."22 NEPA is, however, a purely procedural statute. It requires agencies to follow particular processes when considering federal action—agencies must take a "hard look" at environmental impacts—but NEPA does not require agencies to pursue any particular course of action.23
Under NEPA, federal agencies must consider the impacts of major federal actions significantly affecting the human environment, usually in the form of an environmental impact statement ("EIS").24 This analysis ensures that, first, an agency's decision will be well-informed and "carefully considered," and, second, that the general public will have access to information on which a decision is based and may participate in the decision-making process.25
NEPA contemplates participation of states and local government in this process as well. Per NEPA, it is the "continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."26
To this end, states and local governments may participate in the NEPA process as cooperating agencies if they have jurisdiction by law or special expertise with respect to potential impacts analyzed in an EIS.27 NEPA's implementing regulations, issued by the Council on Environmental Quality ("CEQ"), define jurisdiction by law as "agency authority to approve...
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