A 2017 law review article that looked at Baker County’s 2015 Natural Resources Plan could provide some insight on the Grant County Court’s current discussion about “invoking coordination” to improve its standing in public land-use planning.
Authors Michael Blumm and James Fraser, at the Lewis and Clark Law School, found Baker County’s plan lacking in legal authority and suggested the plan, like other coordination ordinances found across the West, was based on a “flawed understanding of what ‘coordination’ means under federal law.”
In particular, the authors of “‘Coordinating’ with the Federal Government: Assessing County Efforts to Control Decisionmaking on Public Lands” noted that Baker County’s plan “duplicates the language (and the font) describing coordination in the Public Lands Council’s 2012 ‘Beginner’s Guide to Coordination.’”
They also noted that a natural resource plan developed by 11 Grant County residents deputized by Sheriff Glenn Palmer and presented to the Grant County Court in September 2015 “copied the text (and the font) of the Baker County ordinance.”
Palmer said he was invoking coordination when he asked for the court’s support for the plan on Sept. 30, 2015. Critics noted that the plan was drafted in secret, and Ron Yockim, the county counsel, said the sheriff had overstepped his authority by creating the plan.
The plan was never presented to Grant County voters after Circuit Court Judge William D. Cramer Jr. ruled that the petition initiative for the plan did not meet the state’s constitutional requirements. But a new effort to invoke coordination was presented to the county court by Commissioner Sam Palmer on Jan. 23.
The new effort is influenced by a primer on coordination written by Boise, Idaho, attorney Fred Kelly Grant, a past president of American Stewards of Liberty. According to Blumm and Fraser, both the Public Lands Council and American Stewards have provided materials to Western counties urging them to enact coordination ordinances.
The federal government’s land management policies have varied widely over the past two centuries, Blumm and Fraser report in their article. After acquiring huge swaths of land from foreign governments and indigenous peoples, the government allowed settlers to use public lands as a grazing commons.
Impacts from overgrazing led to the creation of grazing districts under the 1934 Taylor Grazing Act. In 1976, Congress established public lands policies under the Federal Lands Policy and Management Act and the National Forest Management Act. Blumm and Fraser note that NFMA requires the Forest Service to coordinate land and resource management planning with state and local governments, but “neither NFMA nor agency regulations require the Forest Service to conduct land planning via government-to-government consultation with counties.”
They also note that “no federal court has interpreted the ‘coordination’ provisions of NFMA or FLPMA” and that “counties lack authority to interpret the coordination provisions in NFMA or FLPMA to create binding obligations on federal agencies.”
According to Blumm and Fraser, opposition to passage of NFMA and FLPMA in 1976 led to the Sagebrush Rebellion in the 1970s and the County Supremacy movement in the 1990s. Thirty Western counties enacted ordinances asserting authority over federal lands in the early 1990s, the authors said.
Lobbying the West
The authors point to American Stewards as a “major source” of the current misunderstanding about the meaning of coordination and say the organization urges county governments to invoke an “aggressive interpretation of local authority.”
“In its materials urging county governments to seek coordination, American Stewards relies on a plain meaning approach to define ‘coordination’ in NFMA and FLPMA,” Blumm and Fraser said. “Relying on dictionaries and irrelevant court opinions — eschewing the usual means of statutory interpretation — the group proclaims coordination means ‘government-to-government’ consultation.”
The authors also note that county governments that assert novel interpretations of their role in public land-use planning “face a steep uphill legal battle” because of the Property Clause in the U.S. Constitution. The U.S. Supreme Court ruled in U.S. v. Gratiot in 1840 that Congress’ power to manage public lands under the Property Clause is “without limitation,” Blumm and Fraser said.
Article IV, Section 3, Clause 2 of the U.S. Constitution states, “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; and nothing in this Constitution shall be construed as to Prejudice any Claims of the United States, or of any particular State.”
The authority that counties claim in coordination ordinances is reserved under federal law for indigenous tribes, which are expressly mentioned in the U.S. Constitution while counties are “constitutionally insignificant,” Blumm and Fraser said.
“Many tribes have treaties with the United States, but county governments have no authority to demand government-to-government negotiations with the federal government,” the authors said.
Blumm and Fraser also speculated about the consequences of the federal government agreeing to a government-to-government status. Noting that “all Americans hold an equal claim of ownership to federal land,” they suggested that giving special status to local plans would promote monopolization of natural resource use and elevate the power of those who control local government — “no doubt local economic leaders.”
“The vast majority of American citizens do not live close to lands they own that would be effectively monopolized by local control,” Blumm and Fraser said.