Should the Forest Service tell local governments the truth?

There is nothing in this article about travel planning that points out that the federal government is not required to follow the Grant County ordinance that is a key part of this meeting.  Let’s assume that is because the forest supervisor didn’t bring it up.  Is this a reasonable ‘get-along’ strategy, or does it encourage more Clive Bundy-think – that the federal government lacks authority?

16 Comments

  1. Just read the short article…In my view this Forest Sup is doing exactly what he needs to do. My sense is that he understands completely that the county has no real authority to force him to do anything, but using this “trump card” should only be a last resort. From what the article indicated, it seems like he made real headway with the county just by coming to their meeting and answering their questions, indicating he will address their concerns before proceeding. Yes, there may be some differences down the line and it is unlikely he will be able to go along with everything the county wants, but from what I could see, the Forest Sup was exercising confident leadership instead of jumping immediately to the use of federal authority at this point…

    There is an expression in the world of leadership development (in which I work), as one uses positional authority, so does one lack in leadership….In other words, using force is not leadership…

    • What Mike says. The County court isn’t going to “take on” the USFS about federal decisions on federal lands, and presumably the forest supervisor knows that even if the county doesn’t (unless the agency has somehow already bound itself to follow local ordinances in its own regulations, which seems kind of unlikely. And even then, the place to litigate would be in federal court). Here’s a good explanatory state attorney general’s opinion/explanation of that scenario (it’s from WA, not OR, but same principle): http://www.atg.wa.gov/AGOOpinions/opinion.aspx?section=archive&id=8514#.VKLwTl4AAA

      But if the feds can avoid seeming high-handed about it, it’s a good call to work with the county and avoid unnecessary confrontation on a matter of public concern, if they’re able to.

      • Guy —

        You have to consider the “except where” clauses found in responses 1 and 2 in that 1994 Attorney General Opinion.

        On the federal level, there are several statutes including but not limited to FLPMA and NEPA mandating various forms of meaningful interaction with local government. There are several executive orders that similarly mandate meaningful interaction with local government.

        In Washington, the same applies, particularly with the Administrative Procedures Act and SEPA, but also not limited to those two statutes alone.

        You might also want to consider how in pari materia (laws of the same subject, on the same matter, may be interpreted with reference to one another) application of statutes plays into these kinds of things.

        • Well, kind of tilting at windmills…

          (“Response 2” deals with preemption of county law by state law, and isn’t relevant to this discussion)

          The other arguments have been popular from the Sagebrush Rebellion to the more recent “county control movement”, but haven’t gained a whole lot of traction in court. It’s true that NEPA requires consideration of “Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment,” and “Agencies are required to make efforts to provide meaningful public involvement in their NEPA processes” (CEQ NEPA Regulations, 40 C.F.R. §§ 1501.4(b), 1506.6(b)). But a requirement to let the public have its say is not the same as a requirement to do what they want or to give them veto power over federal agency decisions (though at least it’s an equal-opportunity doctrine, in that USFS uses it to run over county interests in the same way it runs over environmental interests).

          It’s expressed pretty well here: “Legal jurisdiction over federal lands rests solely with the federal government as provided by the Constitution, legislated by Congress, defined by agencies, and upheld by courts. According to the Constitution, “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” (U.S. CONST. art. IV, § 3, cl. 2 (Property Clause)). “There have been numerous challenges over the years to the federal government’s authority to exclusively manage public lands … the county control movement is merely the most recent of these. The language of the Property Clause is clear and unambiguous. Courts have interpreted this clause as giving Congress the power to manage federal lands. In Kleppe v. New Mexico,’ for example, the unanimous [U.S. Supreme] Court noted, “We have repeatedly observed that ‘the power over the public land thus entrusted to Congress is without limitations.” 426 U.S. 529 (1976). See John W. Hart, National Forest Planning: An Opportunity for Local Governments to Influence Federal Land Use. 16 Pub. Land L. Rev. 137 (1995), available at: http://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1196&context=plrlr

  2. I agree that the forest supervisor is being responsive to county concerns by being present and interactive with the county board. It does sound as if the Forest Service was remiss in its obligation to provide early notice for their proposed actions to the county . . . which should have been in the form of government-to-government notice ahead of public notice to ensure that the county had maximum potential for meaningful interaction with the Service.

    His responsiveness in assuring that the county will have the opportunity for active participation is encouraging. It remains to be seen what formal form of participation the Service will be offering. Because the county has enacted an ordinance covering the issues under consideration, local officials have considerable authority under the Tenth Amendment’s reservation of powers principle. This is particularly true where the sheriff is concerned . . . public health and safety considerations trump many other aspects of land use planning.

    From what I see in the article, the forest supervisor actually understands that the county has significant role, power, and authority in this instance and that the county has laid the groundwork necessary for meaningful participation in the Service’s planning and decision-making process.

    The county is quite apparently aware of their position, too, or they would not have invited the forest supervisor to meet with them in this formal venue.

    I think this is a process that should be observed closely and with interest to see how it goes. I think we may see the Forest Service and the county becoming fairly deeply involved with some meaningful NEPA work with an eye toward more effectively balancing the needs of the natural environment with the needs of the human environment. I would also not be surprised to see there being more CEQ involvement than has been the norm in recent years.

    It will be interesting to see whether the Forest Service steps up to the plate to match their public assurances on working with local government with on-the-ground deeds.

  3. I understand that federal law requires the Forest Service to probably do what the local ordinance also requires, and that arguing about that would disrupt the meeting and limit progress. So I could agree with Mike and Guy, but only IF the forest supervisor is also communicating with the local government outside of this meeting that he has no duty to follow their ordinance.

    This part of the article suggests that the parties are talking past each other: “he still wanted the Court to put the agency on notice in writing that it must obey the ordinance. Beverlin said he does have a letter from the Court about the ordinance,”

    Maybe that’s deliberate and the way the ‘leadership’ game is played. But I think it is the responsibility of a leader to make sure (by a written response to that letter in this case; I know the FS has a prepared response) that all parties understand the law. Otherwise they’ll be bringing up things like the Tenth Amendment folklore that inspires the Clive Bundys to act out.

  4. Jon,

    I hear what you’re saying and it does make some sense, but my understanding of these situations is that it is usually not a good idea to “raise the stakes” unless you absolutely have to. The moment the Forest Sup starts talking about his authority as a fed trumping the local ordinance, all conversation will come to a halt. By not invoking his “trump card” he is still able to explore a course that may resolve many of the issues with the “heavy hand” of federal authority. Again, I do hear what you’re saying and I recognize there is a lot of discretion in how one handles these things…

    Mike

  5. here’s a pretty good example of FS and county people butting heads, and as Mike says, “the Forest Sup starts talking about his authority as a fed trumping the local ordinance [or other wishes] … all conversation will come to a halt.”
    https://countieswithnationalforests.wordpress.com/2014/12/24/benewah-county-forest-service-clash/

    The deck is very much stacked in the federal govt’s favor, but ideally they can avoid rubbing peoples’ noses in it.

  6. The situation on the Idaho Panhandle is part of the forest plan revision process. The parties objected to the plan, were not satisfied with the Forest Service response, and litigation is a possibility. This was obviously a “gotcha” line of questioning with “wife-beating” questions, and the Forest Service was correct to be wary of answering. It is unfortunate that they were not better prepared for this attack.

    In this case the Forest Service had actually done what I suggested for Grant County. You can read the written response to the forest plan objection here (on pp. 4-5) -http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd3816222.pdf
    This should have been used to establish some ground rules for the meeting in advance. It should have been about implementing the plan rather than rehashing the issues in the objection. (The next step for rehashing would be court.)

    I think the question is one of when to play the federal “trump card.” I can certainly defer to those closer to the action to judge where the potential for agreement outweighs the risk of backlash, but on this issue that potential seems low (as the situation in Idaho suggests).

    • “This was obviously a “gotcha” line of questioning with “wife-beating” questions, and the Forest Service was correct to be wary of answering. It is unfortunate that they were not better prepared for this attack.”

      I totally agree on both these points. I think both sides managed to shoot themselves in the foot, but the FS representatives were placed in an untenable and unnecessarily defensive position. I was surprised to see a few commentators characterize the FS reps as “arrogant”; if anything I thought they were the more polite folks at that meeting. Well, more polite that I probably would have been anyway…
      🙂

    • Having now read the article Guy posted, I agree with you both on the “gotcha” question. This is the sad truth of “group think” that comes when rural communities and counties only talk amongst themselves. From a compassionate viewpoint, this is a very normal (albeit tragic) distortion that stems from living in fear and loss. In the end, all the counties in the country cannot overcome federal authority without some kind of legislative remedy….It’s just really sad to see this kind of fear-based interaction taking the place of creative, long-term solution seeking…

  7. No surprise, I am in agreement with you Jon in that this all boils down to when the Forest Sup decides to play the trump card and, if/when the time comes, how to go about laying it on the table (extending the metaphor a bit). Making these decisions is where real leadership comes in to play, which is often a lot harder than it looks….Those closer to the situation would be in a better position to judge than I, and I realized in reading your email Jon that I’ve been speaking in much more generalized terms. Still, I do believe the trump card should only be played as a last resort and even then it needs to be done as diplomatically as possible….

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