Coordination Works | April 13, 2011 | Margaret Byfield --

In some cases where local governments have insisted the federal agencies coordinate their plans and management activities as required by law, the agencies have initially refused.  What is revealing in these instances are the arguments used to avoid complying with the very clear mandate set forth by Congress.

One of the most recent arguments brought forward by the Bureau of Land Management state director in New Mexico and the Agencies Liaison to State and Local Governments in Washington D.C., is case and point.  They have both taken the position that there is no “Coordinating Status” in federal law, and then instruct the local governments that the appropriate way to work with the agencies is through a “cooperating agency status” relationship.

In the article “Nine Reasons for Avoiding Cooperating Agency Status,” we spell out the differences between coordination and “cooperative agency status” and point out that to gain a seat at the table as a “cooperative agency,” you must first have the permission of the lead agency to participate.  This means they dictate the terms of how you can advocate your position.  (Read the 1999 memo by the Chairman of the Council on Environmental Quality detailing the factors for allowing local governments to have “cooperating agency status.”)

Coordination is mandated by Congress and does not require the permission of the agency; rather it simply requires compliance with the law.

Why the Agencies Argument Fails

The agency is correct in that there is no “coordinating status” in federal law.  The coordination requirement is a process where Congress clearly defined the duties placed on the federal agencies to ensure the local position was taken into account during their planning process and as they carry out their management activities.

Congress did not establish a “coordinating status.” They established a process for the agencies to work with local governments and resolve problems.  Importantly, they did not leave open what the agencies were to do to carry out this process. They spelled out five specific requirements of coordination in very clear terms as the minimum expected of the agencies.

The legislative branch of our federal government did not need to create a special status for local governments; instead they recognized that local governments already had a special status.  They are a duly created political subdivision of the state that has the responsibility to protect the health, safety and welfare of their citizens.  Because of the critical role local governments have in the functioning of our free society, Congress went to great effort to ensure local governments would have a process to advocate what is best for their citizens, local economy, and unique way of life, where the agencies could not dismiss their position.

Congress set forth the process of coordination as a way to make certain that the agencies would consider and take into account the local government’s position prior to the public, meaningfully involve the local entity in the planning and management activities of the agency, and then placed the burden on the agency to make its position consistent with the local government’s as long as that position is consistent with federal law.  They spelled out this mandate in the federal statutes at “43 USC 1712(c)(9).”

So, when a local government notices a federal agency that it will be requiring it to coordinate its plans and management activities, it is simply insisting that the agency follow the law.  When an agency instead refuses to coordinate and suggests the local governments participate as “cooperating agencies” with permission, of course, it reveals the agencies disregard for the local position.

Local governments do not need an “agency status” to sit at the table.  They already have all the “status” they need, given to them by the people when elected by the majority.