Cooperating Agencies, the CEQ Report and the BLM Desk Guide

Jim Furnish made an interesting comment about cooperating agencies here.

Beware of monkey wrenching! Cooperating agency status is generally reserved for other federal agencies, and is ALWAYS discretionary. I recall when numerous western states pursued “Coop” on the Roadless rule, I asked them why. MT rep stated “We want to stop the process” – TRUE! We said “No. Thank you, but no.” Given the nature of planning efforts, counties may not be trying to make the process smoother and outcomes better for all. There are other ways to assure their voice is heard.

Meanwhile, my own experience with NEPA in the WO was that CEQ encouraged agencies to have cooperating agency relationships, in fact, there seemed to be a report required that counted them all for all the agencies, federal, state and local. As CEQ says on its website

To ensure that Federal agencies are actively considering designation of Federal and non-Federal cooperating agencies in the preparation of NEPA analyses and documentation, CEQ requests annual agency reports on cooperating agency status.

Except, they don’t appear to be annual reports, at least not on this website. The last one was 2016.

Well, one of my favorite documents about Cooperating Agency status has always been the BLM Deskguide, which was updated in 2012. I’d like to give a special shout-out here to the authors of this helpful document.

3 Section 1. Introduction

In any Federal undertaking, harmonizing national, regional, and local governance entails at least three key tasks. As Matthew McKinney and William Harmon noted in The Western Confluence: A Guide to Governing Natural Resources (2004), these include integrating the involvement of multiple parties with competing interests and values, removing obstacles to sharing and validating relevant
information, and resolving conflicts among institutions and policies.

• Multiple Parties. State, local, and tribal government officials are often in a better position than are Federal land managers to engage the communities and interest groups most likely to be affected by a plan or proposed activity.

• Complex Information. Effective discussion between Federal agencies and the public is often blocked by deeply incompatible views of the “facts” regarding current environmental and socioeconomic
conditions as well as the effects that a proposed plan or activity may have on these conditions. Resolution of these incompatibilities often requires the lead agency and CA partners to engage in
joint fact-finding and to seek agreement on where to find valid information and how to interpret it.

• Conflicting Policies and Institutions. The challenge of managing public lands can reveal significant disagreements in jurisdictions and mandates, not only among Federal, State, local, and tribal
governments but also among different Federal or State agencies. The CA relationship offers a forum in which to discuss and, if possible, reconcile divergent policies and plans for the common good.
Although challenging, intergovernmental cooperation in the management of lands and resources can yield great benefits for the public. The CA relationship is one tool among many that can advance collective efforts among government partners. Each party may have some lessons to learn—and some practices to unlearn.

Common Characteristics of Western Resource Disputes
Multiple Parties
• Clash of values
• Competing interests
• Complicated relationships
• Varying types and levels of power

Complex Information
• Lack of information
• Misinformation
• Different views on what information is relevant
• Different procedures to collect and assess data
• Different interpretation of data
• Different levels of comfort with risk and uncertainty

A Briar Patch of Policies and Institutions
• Multiple jurisdictions
• Competing missions and mandates
• Lack of meaningful public participation
• Multiple opportunities for appeal
• A fundamental question of who should decide
From The Western Confluence: A Guide to Governing Natural Resources, by Matthew McKinney and William Harmon. Copyright 2004 by the authors. Reproduced by permission of Island Press, Washington, DC.

Experience has shown that there are three primary lessons that can lead to success when working across government boundaries. They are:
1. Federal, State, local, and tribal partners need to recognize that the CA relationship is a forum for sharing information and expertise, not for asserting authority. Engaging in a CA relationship neither augments nor diminishes an entity’s jurisdiction and authority. However, mutual respect for each agency’s authority and jurisdiction is critical.

2. BLM managers and staff should acknowledge that the CA relationship requires new ways of doing business. Engaging with government partners as CAs is a unique form of consultation.
Cooperating agencies expect, and should be given, a significant role (commensurate with available time and knowledge) in shaping plans and environmental analyses—instead of merely commenting
on them.

3. All parties will find the CA relationship most productive when they emphasize mutual, rather than individual, gains and seek solutions that meet others’ needs as well as their own.
Working with other government officials through the CA relationship makes better outcomes more likely and can establish a foundation for long-term cooperation that benefits all partners

Meanwhile as we talked about in this court decision about the southern California plans, the court said

“The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process established by the 2005 State Petitions Rule, the lawful process at the time.The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”

21 thoughts on “Cooperating Agencies, the CEQ Report and the BLM Desk Guide”

  1. (I was going to respond to Jim’s comment, but I till put it here.)
    Here’s the criteria in the CEQ Regulations:
    Ҥ 1501.8 Cooperating agencies.
    (a) The purpose of this section is to emphasize agency cooperation early in the NEPA process. Upon request of the lead agency, any Federal agency with jurisdiction by law shall be a cooperating agency. In addition, upon request of the lead agency, any other Federal agency with special expertise with respect to any environmental issue may be a cooperating agency. A State, Tribal, or local agency of similar qualifications may become a cooperating agency by agreement with the lead agency. An agency may request that the lead agency designate it a cooperating agency, and a Federal agency may appeal a denial of its request to the Council, in accordance with § 1501.7(e).”

    Non-federal participation usually hinges on “similar qualifications” giving it “special expertise,” and in the previous post I gave the Black Hills the benefit of the doubt for now because they said they had “data.” I read the above language from BLM as going beyond the purpose of cooperating agencies to broader collaboration goals (and beyond “environmental impacts”), which of course the agencies have the discretion to do.

    There is also a history of local governments confusing “coordination” pursuant to NFMA with NEPA cooperating agency requirements – and abusing the former. The NFMA angle was discussed here:

  2. I disagree with Mr. Furnish’s assessment of the value of cooperating agency status for state and local government. I can share some historical perspective on Interior’s efforts on cooperating agency, because I played an important rule in the promulgation of BLM’s cooperating agency rule in 2004-5. proposed rule (2004)) and final rule (2005). This was, in my estimation, one of the most significant actions I took as Assistant Secretary, to improve the access to BLM’s planning process by state and local governments. Prior to this, BLM offices took the position that engaging with state and local governments in land use planning and NEPA was discretionary or optional. President George W. Bush issued an Executive Order 13352, “Facilitation of Cooperative Conservation” that put in motion a CEQ-led interagency process to bring life to the existing NEPA regulatory direction on a role for state, tribal and local governments as cooperating agencies. (40 CFR 1501.8). This effort was also in accord with FLPMA, 43 USC 1712(c)(9)(coordination with state, tribal and local governments in planning). I was proud to lead the response of the agencies with a BLM rule that strengthened the NEPA/FLPMA direction to make the offer of cooperating agency status for state, tribal and local governments in land use planning a routine and not discretionary offer. Secretary Norton followed the BLM effort with Departmental Manual direction for other Interior agencies. (43 CFR 46.225 & .230) CEQ has issued several reports on their work to improve cooperating agency status. An agency may not like what the state or local government has to say or be suspicious of ulterior motives, but the days of “expert agencies” operating behind closed doors to make planning decisions that have a profound impact on local governments should be over. FLPMA and NEPA both encourage robust public participation and an enhanced role for state, tribal and local governments.

  3. From Sharon’s comment above… “All parties will find the CA relationship most productive when they emphasize mutual, rather than individual, gains and seek solutions that meet others’ needs as well as their own.”
    I agree, but some agencies will view Coop Agency status as an opportunity to frustrate a project. Be CAREFUL!

    • I concur, Jim. This is why a lead agency should consider only those entities that have a “special expertise with respect to any environmental issue” as “cooperating agencies”. Providing comment/input vs. expertise are very different roles.

      When I worked in UT in the early 2000s, the FS was able to motivate county and state participation in the plan revision process by recognizing those entities as the experts in state and local economics. Our cooperating agency agreement essentially put them to work to develop the economic data needed for the FS’s analysis. The revision was never finished, but the federal, state, and local relationships improved dramatically.

  4. I found this interesting piece in a judge’s ruling on the 2001 Roadless Rule: I’m not legal enough to know if it’s true, but it’s one federal judge’s opinion apparently.

    “Wyoming argues that the Forest Service’s decision to deny it cooperating agency status was arbitrary and capricious. (Pl.’s Opening Br., at p. 51-52). Federal Defendants respond that the decision to grant cooperating agency status is completely discretionary; therefore, the Forest Service cannot be faulted for its failure to exercise its discretion. (Fed. Defs.’ Br., at p. 50). Defendant-Intervenors did not respond to this argument.

    i. The Grant of Cooperating Agency Status to States.

    The NEPA regulations emphasize inter-agency cooperation early in the NEPA process by designating as cooperating agencies those agencies that have expertise in the field or are affected by the lead agency’s actions. 40 C.F.R. § 1501.6. A state may become a cooperating agency only through agreement with the lead federal agency. 40 C.F.R. § 1508.5. However, just over two months before the Roadless Rule NOI was published, the Director of the CEQ urged agencies to more actively solicit the participation of state governments as cooperating agencies during the scoping process because cooperating agency relationships with state agencies help to achieve the purposes of NEPA. (AR, Doc. 3544, at pp. 2-3). ”

    The judge’s point being “if CEQ says it’s a good idea to do it, why not do it?”. Because they might not agree with your or your (as the judge says “self-imposed” timeline.) Perhaps CEQ was wrong? Or left out the clause, “when states agree with what the Admin wants to do, we should solicit their involvement, otherwise… well, no.”

    • This opinion doesn’t mean anything. The appeals court vacated it, i.e., the opinion no longer exists. Wyoming v. USDA, 414 F.3d 1207 (10th Cir. 2005).

      • In fairness, the opinion was vacated as moot, because while the appeal was pending the Forest Service issued the “petitions” rule to replace the original roadless rule. It would be my understanding that the district court opinion does still exist, and could be cited for the this public participation issue as “vacated on other grounds.” (But maybe a more practiced attorney could correct me on this.)

        • As Jim Furnish notes, Judge Brimmer also struck out in his second roadless rule case, in which he again enjoined the rule based, in part, on his notion of “cooperating agency” status. Here’s what the 10th circuit said when it reversed Brimmer on all grounds:

          In February of 2000, early in the NEPA process, Wyoming requested the Forest Service to grant it “cooperating agency” status under the CEQ Regulations. The Forest Service never responded, thereby impliedly rejecting or denying Wyoming’s request. The district court concluded that, although administrative agencies generally have “the discretion to grant or deny the states cooperating agency status,” the Forest Service acted arbitrarily and capriciously in denying Wyoming’s request because “[t]here is not one good reason in the administrative record before the Court explaining why cooperating-agency status was denied to the ten most affected states, including Wyoming.” Wyoming, 570 F. Supp. 2d at 1334-35. On appeal, the Forest Service and the Environmental Groups argue that the district court erred because the Forest Service’s decision to grant or deny a request for cooperating-agency status is committed solely to the agency’s discretion and not subject to judicial review under the APA. We agree.

          Wyoming v. USDA, 661 F.3d 1209, (10th Cir. 2011).

          The unanimous 10th circuit panel concluded: “Wyoming failed to demonstrate that the Forest Service’s promulgation of the Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus, the district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the court’s action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims.”

          And that was that. Nothing survives of Judge Brimmer’s roadless rulings.

          • Andy I totally get that this was overruled …my point was that reasonable judges can disagree about what needs to be in the admin record and whether a decision is arbitrary and capricious. And my point being it’s not clear to me why in this case the FS didn’t need documentation of why they didn’t allow cooperating agency status here… and yet in the California case, they were remiss in not documenting that they had involved the State of California, even when the State didn’t want to be involved. Perhaps I’m missing an important legal difference, but as a non-legal person it looks like the final decisions by the courts on how the FS needs to document State involvement. I wonder if that’s a difference between the 9th and 10th Circuit? About coordination vs. cooperating agency?

            • I believe it is much more simple than that, Sharon. I recently read “Noise: A Flaw in Human Judgment” where the authors used the differences of judicial rulings (as well as other decision making bodies) as the foundation for their conclusion that humans create “noise” in their decisions. This “noise” results in the variable outcomes that you note.

              It was an interesting read, though a bit academic in its presentation.

            • The California case was about a non-discretionary NFMA requirement for “coordination,” and even though that requirement to do something was minimal, the FS did not demonstrate compliance. (The court indicated that the EIS was where this should have been documented, but it was not a NEPA issue.)

              Andy is correct that the second 10th Circuit opinion (the original roadless rule got reinstated by a different court, which “unmooted” this case) did hold that the court could not review the agency action (or inaction in this case) because there was “no law to apply” in the NEPA regulations.

              “Although it is true that the CEQ Regulations permit Wyoming to request cooperating-agency status from the Forest Service, and further authorize the agency to grant such status, nothing in the regulations mandates or requires that the Forest Service grant such a request. More importantly, the applicable regulations provide no standard for a court to apply in reviewing the Forest Service’s denial of such a request, and are likewise devoid of any standards or directives that would guide the Forest Service in granting or denying such a request. In other words, there is simply no law to apply. Cf. Solis, 589 F.3d at 1130 (concluding that there is “law to apply” when the applicable legal framework provides “clear and specific directives” to guide the agency in making the determination (internal quotation marks omitted)). Under the applicable legal framework, therefore, the decision to grant or deny Wyoming’s request was committed to the Forest Service’s discretion and is not judicially reviewable under the APA.”

              And it expressly reversed the district court: “Accordingly, the district court erred in finding that the Forest Service’s implied denial of Wyoming’s request was arbitrary and capricious.”

              So this is not about judges disagreeing. Just different laws being applied.

              • Thanks Jon, so… if it had been a plan, they would have had to coordinate and document it, but since it was rulemaking they did not have to coordinate because they did not need to follow NFMA regs?

  5. IMO, using the “cooperating agency” status as a public involvement tool is less effective than leveraging the state/local government’s expertise in the decision making process. At the end of the day, it is a federal decision under NEPA, as informed by many interests (including state/local governments).

  6. Joh hit the proverbial nail on the head when he said “ There is also a history of local governments confusing “coordination” pursuant to NFMA with NEPA cooperating agency requirements – and abusing the former. ”. Holy smokes, as a Forest Supervisor, one was always being drawn into the counties misunderstanding of the “coordination”, and cooperating agency. I kept a handy dandy OGC opinion on how to handle such inquiries. Most of the time, it was viewed as fighting words, and local governments (in particular) would “whip up” into a frenzy, trying to tell me why I was wrong!

    To me, that was the biggest difference in my career changes; Forest sup level management of relationships, without dirtying the legalese of NEPA. And, many of those folks played for keeps…. That and the “Supremacy Clause” as it relates to federal lands….. geesh!

  7. Anecdote time: I recall sitting in FS Chief Bosworth’s office when WY Judge Brimmer’s (see Stahl above) opinion came out. Bosworth wanted a briefing on its merits. I told the Chief it was crap (stated a bit more elegantly than that…) while other FS staff (note: very anti-Roadless area protection) lauded it as better than sliced bread. As we departed an OGC atty (USDA counsel) said confidentially “Thank you for that. I thought I was going crazy in there.” As Stahl noted, Brimmer’s opinion was vacated 3-0 by 10th Cir. You should read THEIR opinion of HIS opinion. I felt validated.

    • Jim, with all due respect, and with my having disagreed and agreed with different OGC attorneys and judges through time, the plaintiffs had concerns with the NEPA process as it was carried out. It seems to me having observed many cases through time, that sometimes judges are much less picky about processes than other times.
      To me it’s not about roadless vs. anti-roadless- it’s about a level NEPA playing field, no matter who is trying to do what.

      • I think you’d need to read both Brimmer’s and 10th Cir opinions in their entirety to understand why I thought Brimmer’s was “crap” and why the 10th Cir found MANY reasons to overturn. Notes above are highlights and do not capture the comprehensive nature of 10th Cir saying “Brimmer, you wrote crap. Get outta town!” I think the 10 Cir leveled the NEPA field after Brimmer tilted it.

        My comment about anti-roadless sentiment is intended to say that one’s pre-disposition influences your perception. Much could be written about this same tendency influencing Covid vaccination, Jan 6 Insurrectionts, 2020 election outcome, etc. oh, and forest carbon too


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