There has long been tension between short-term local interests and long-term national interests in the nation’s public lands. Understandably, but incorrectly, those living closer to federal public lands tend to feel they should have a greater say in how the nation’s public lands are managed. As the nation continues to urbanize, this tension will likely become more acute.
Locals do visit the national public lands near them, either for recreation or exploitation (logging, grazing, mining, and such), more than do other citizens in their state, the vast majority of whom live in urban settings. Certainly, locals use (or abuse) federal public lands far more than do the majority of Americans who live in states other than the “public land states.” (Though most states have a significant amount of federal public land, the vast majority of such land is in the eleven western states and Alaska; see Map 1.)
Given the importance to certain local interests of federal public lands owned by all Americans, local interests (often through their local county governments) have come up with creative legal theories as to why they should have control, or at least more control than others.
Coordination: Religion Masquerading as a Word in Law
The latest manifestation of local interests seeking to impose their inordinate will on federal land management within their counties is called coordination. Several counties in the Intermountain West, including some in Oregon, are pushing the joys of “coordination.” Perhaps the most prominent has been Baker County, through its commission chairman, Bill Harvey.
Baker County’s downright coordinatorgasm drew the attention of Lewis and Clark Law School professor Michael Blumm and 2017 graduate James Fraser, who published a 2017 law review article entitled “‘Coordinating’ with the Federal Government: Assessing County Efforts to Control Decisionmaking on Public Lands.” In 66 pages (and 268 footnotes!), Blumm and Fraser patiently and meticulously, factually and legally, deconstruct the coordination movement, using Baker County as a case example.
The counties that advocate “coordination” read federal law as giving them a veto in matters of federal land management. In their dreams. The term coordination is found in the two organic (basic operating) acts, both first enacted into law in 1976, for the Forest Service and the Bureau of Land Management (BLM).
For the BLM, local uber allists rely on a clause in the Federal Land Policy and Management Act (FLPMA) that directs the BLM “to the extent consistent with the laws governing the administration of the public lands, [to] coordinate the land use inventory, planning, and management activities . . . with the land use planning and management programs . . . of the States and local governments within which the lands are located” (emphasis added).
For the Forest Service, local supremacists rely on the National Forest Management Act (NFMA) provision that says the agency must “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies” (emphasis added).
For FLPMA’s coordination requirements, Blumm and Fraser note, after citing BLM regulations that interpret FLPMA, that “FLPMA and its regulations require BLM to listen to local sentiments on public land management but do not require the agency to ensure compatibility with local government resource plans.”
For NFMA’s coordination requirement, Blum and Fraser note that
Although NFMA does not define the term “coordinated,” the Forest Service’s regulations interpret the coordination language to require that in developing or revising plans, the agency must “review the planning and land use policies” of local governments and disclose the results of that review in the agency’s analysis under the National Environmental Policy Act (“NEPA”).The regulations make clear the section should not be read “to indicate that the responsible official will . . . conform management to meet non–Forest Service objectives or policies.” Neither NFMA nor agency regulations require the Forest Service to conduct land planning via government-to-government consultation with counties.
The State—er, County—Is the Most Sovereign
A generation ago, in the early 1980s while Ronald Reagan was president, the localists put their hopes in the Sagebrush Rebellion, a movement that called for transferring federal lands to the states. The sagebrush rebels (traitors is a more accurate word) had to resort to some very contorted constructions of constitutional law, none of which have ever been accepted by the courts. After the rebellion petered out (more than it was quelled), the notion of state supremacy over federal lands evolved—or, I should say, further devolved.
The sovereign states the local special interests were relying on were becoming less reliable as shills for these local interests. The public land states were and are becoming more urban. Today, the ten truly rural counties in Oregon contain just 2.5 percent of the state’s population; thirteen counties are metropolitan, with 83.5 percent of the state’s population; and the remaining thirteen counties are micropolitan, with 14 percent of the state’s population.
So if one cannot rely on the sovereign state government (perhaps one still can in Utah) to battle the national sovereign, one has to invent a new sovereign.
In the minds of the localists, the county is now the most sovereign of the governments. Poor Cliven Bundy, who illegally grazes his livestock on federal public land in Clark County, Nevada, happens to live in the most urbanized county in Nevada. You may have heard of Las Vegas.
The problem county governments have is that while they are governments, they are not sovereign governments like those of the United States, its states, or federally recognized Native American tribes. Counties exist as the creation of—and for the convenience of—the sovereign state. Even a city has the legal status of a corporation. Not so counties.
The County—er, County Sheriff—Is the Most Sovereign
Most county governments are run by boards of three people. The odds of finding three board members who are all simultaneously 100 percent bat-shit crazy (a term of psychology) are not high. There is a good chance that at least one of them understands that counties are in fact not sovereign, that the vast majority of a county budget comes from the state and federal governments, and that the federal government has all the nuclear weapons. A coordination extremist cannot rely on those who are not 100 percent bat-shit crazy and won’t drink the coordination Kool-Aid™.
Enter the county sheriff, at least those who fancy themselves to be “constitutional” or “sovereign” sheriffs. Rural sheriffs (almost all are male) are elected directly by the rural county’s voters and are generally quite conservative. Sheriffs also don’t report to the general governing body of that county. Some sheriffs, and the locals who want the federal government to turn over control of federal lands to them (along with the federal money to administer them), seek to inflate their power by asserting that the elected sheriff is the ultimate sovereign. To reach this legal notion they harken back to the Sheriff of Nottingham, while conveniently writing out of their script the evil Prince John and the good King Richard, only one of whom was the true sovereign under English common law.
Fortunately for federal public lands, these so-called constitutional sheriffs are more interested in imposing their interpretation of the Second Amendment to the US Constitution than trying to overcome the federal supremacy embedded in the Property Clause (Article IV, Section 3, Clause 2) of that same constitution.
The Coordination-Industrial Complex
Fueling the false hopes of frustrated county governments is an industry of “experts” who make a living telling frustrated localists what they want to hear rather than what they need to hear or facts that contradict the narrative. American Land Stewards, American Legislative Exchange Council, Defend Rural America, and others are all agitating for “coordination.” (When you say the word, first pause briefly, then lower your voice to signify the reverence in which you hold it.)
This Too Shall Pass
Local federal land managers are generally a timid lot during the best of times. (After all, one has to live in that small town and doesn’t want their kids beat up at school.) So local federal land managers try to be accommodating. This timidity is not limited to federal officials living in the sticks but extends to the Portland-based Pacific Northwest regional forester who freely admitted that the wishes of local interests were more important to accommodate than any other interests.
It doesn’t help that President Trump doesn’t have the back of local federal land managers and their staff. I am reminded of the story about how President George H. W. Bush was reading the New York Times one morning (oh, for a president who reads!) only to read: “This week, a rancher said he and the other men who run cattle on public land south of here are ready to ‘cut the throat’ of Donald Oman, the district ranger, if the Government does not transfer him.” Indeed, Oman was to be transferred but filed a whistleblower complaint. Oman’s superiors didn’t transfer him after all, especially as they quickly and directly learned it was a matter of high importance to the president that he not be.
The administration will change. The nation and the western states will continue to urbanize. Congress will improve. The courts are open. This too will pass.
More on Counties and Federal Public Lands
Here are three Public Lands Blog posts particular to counties: