Part 2 of the 3 part series (revised July 2015)
Federal Agencies have several processes available that they can use when preparing land use plans to ensure the involvement of local governments, tribes, other agencies and the public. These are often referred to as the “Four C’s” which are “Coordination, Consultation, Cooperation and Collaboration.”
As expressed in part one of this series, “Coordination” is a process that allows local governments to ensure conflicts with their plans and policies are resolved. Because coordination is a government-to-government relationship, it is not an appropriate forum for the public to engage the administrative agencies as they have no governmental responsibilities to fulfill. Additionally, the coordination process allows local governments to negotiate with the agencies in an open public format with a quorum of the elected body present, which they must do in order to comply with state open meeting laws.
Coordination recognizes that the governing body of local governments are elected by the public and are delegated the authority to represent the public. Therefore, their participation in the planning process should never be equated to that of the public.
Coordination is not Collaboration
“Collaboration” is an appropriate forum for the public to advocate their position. The collaboration process allows various stakeholders and interest groups to meet together and come to a consensus on planning issues. These can then be taken into account by federal and state agencies, but the agencies still retain the authority to accept or reject the stakeholder’s position. While local governments may want to participate in collaborative processes, they should do so while also insisting on a separate coordination process where consistency with local plans can be reached; otherwise, the local government position will be treated equally with those from radical environmental organizations that advocate the elimination of productive industries, destroying the economic base local governments are charged to protect.
Coordination is Not Cooperation
Coordination is much more than cooperation. It is not “cooperation,” “cooperate” or “cooperating.” The word “cooperate” is defined as “to act or work with one another” or “to associate with another or others for mutual benefit.” (Merriam-Webster Dictionary)
No version of the word “cooperate” carries any connotation of equal parties striving for harmonious result as does coordinate and coordination. A superior party can cooperate with an inferior party. By the act of cooperation, the inferior party does not become equal to the superior. Unequal parties can “cooperate” by working together to accomplish their unequal goals. But, by dictionary definition and under the definition set forth in the California Native Plant Society v. City of Rancho Cordova, 172 Cal. App. 4th 603, 91 Cal. Rpr. 3d. 571 (Third App. Dist. 2009) only equal parties coordinate.
The federal agencies seek to lure local government into a “cooperating agency” role. As a “cooperating agency,” the local government merely sits at the planning table with the federal interdisciplinary planning team. The cooperating entity can provide input into the planning activity and the federal team listens. But most often, the local input is ignored and never referred to in the planning document that emerges from the meetings. As a cooperating agency, the local government can be assigned planning tasks, which it is expected to finance and perform. Yet, there is no obligation on the agency to make any meaningful use of their results.
The National Forest Management Act, the Travel Management Rules, and the FLPMA Regulations all require that the agency coordinate by being apprised of local plans and policies, noting conflicts between federal and local plans and policies, reporting the interactive impacts of the federal and local plans and policies, and establishing alternatives for dealing with the impacts, i.e., resolving conflicts. There are no such requirements related to the cooperating local government.
Two parties can “cooperate” by sitting together and discussing an issue simply for the purpose of understanding each other’s position. It is to their mutual benefit to understand their competing positions, even though there is no resolution of the conflict that exists. They each describe their position; they listen to each other and decide that they cannot reconcile their differences. They have “cooperated.” They have not “coordinated.”
Federal Agencies often insist that they can fulfill they “coordination” responsibility in the “cooperative” process, but this position demonstrates they are not committed to resolving conflicts and reaching consistency with local governments because it is fundamentally impossible for them to do so in this forum where the local government’s responsibilities are not viewed as equal to those of the federal agency.
Additionally, the Cooperative process was not designed to reach consistency, but was designed to allow interagency participation in the drafting of environmental impact statements under the National Environmental Policy Act. The Cooperative process is a closed forum so that agencies can discuss pre-decisional information without having to answer to the public until they have internally agreed on the planning alternatives. While local government representatives can participate in these meetings, the full governing board cannot, and therefore, cannot participate in good faith negotiations to reach consistency. When agencies insist that local governments coordinate in the cooperative process, they are asking them to violate the state open meeting laws.
Coordination is Not Consultation
The term “consultation” means deliberating together, discussing with each other. The word “consult” means “to ask the advice or opinion of another” or to “deliberate together.” In effect, an agency can consult with local government simply by talking to the governing board of the government, and listening to its advice or opinion.
Again, in the act of consultation, there is no obligation on the part of the agency to determine whether there is a conflict between the federal plan and policy and the local plan and policy or to attempt to resolve the conflict. An agency can “consult” with local government by doing no more than listening to the local government’s governing board. As determined by California Native Plant Association, merely listening, i.e., consultation, does not constitute “coordination.”
A superior officer can consult with a junior officer with regard to who should be promoted. That means he speaks to the junior about the promotion and listens to his opinion. Suppose the junior officer recommends “x” for the promotion. After listening, the senior officer promotes “y” and does not bother to explain why he did not follow the junior’s advice. The senior officer has consulted with the junior officer, but he has not coordinated with him.
Coordination is Not Supremacy
In the early days of local government’s attempt to use the coordination concept established in the Federal Land Policy Management Act (FLPMA), some local governments urged that it had supremacy over the federal agency with regard to land within the boundaries of the unit of local government. The “county supremacy” doctrine was based not only on the language of FLPMA, but on the historical and traditional place of the county in the hierarchy of government.
The Counties, which urged the existence of supremacy, contended that the federal agency had to manage in accordance with local policies and plans, had to acquire county approval for entry into the county to conduct its management duties, and had to obey the county land use plan and policy.
Boundary County, Idaho enacted an ordinance in 1991, which required all federal and state agencies to comply with its land use policy and plan. It based its ordinance on “local custom and culture.” The County simply followed the lead of Catron County, New Mexico, which acted on the ill-conceived argument that the custom and culture of local government gave the county a supremacy position with regard to land use control over federal lands.
How much the “supremacy” of local custom and culture was influenced by the ill-fated Nye County, Nevada resolutions that the county owned all federal lands, is not clear, but, the Nevada notion was stricken down in United States v. Nye County, 920 F. Supp. 1108. Catron County rescinded its ordinance before it could be stricken by a court, leaving Boundary County to be the scapegoat. The Idaho Supreme Court declared the ordinance invalid in Boundary Backpackers v. Boundary County, 128 Idaho 371, holding that it violated the supremacy clause of the Constitution. The Court held that Congress’ power under the property clause is exclusive, without limitation, and free from state interference.
And, that is the difference between coordination and supremacy. Congress does have exclusive power over the federal lands. In the exercise of that exclusive power, Congress has mandated that the Bureau of Land Management and the Forest Service “coordinate” their planning and management processes with local government. The coordination mandate is found in the Federal Land Policy Management Act and the National Forest Management Act. Both are federal statutes passed in accordance with Congress’ constitutional power, thus they are the supreme law of the land.
Therefore, the coordination requirement is the supreme law of the land, which must be obeyed by the agencies.
Coordination is a process for reconciliation of conflicts between federal and local policies. It does not provide local government with any type of supremacy. It does provide local government with an equal seat at the negotiating table. It does require the federal agencies to negotiate in good faith to resolve conflicts.
As Lois J. Schiffer, Assistant Attorney General for the Environment Division of the Department of Justice said on July 28, 1995: “We welcome local participation in land management decisions.” She made the statement as she and Peter Coppelman, Deputy Assistant Attorney General for the Environment and Natural Resources Division asked the District Court in Las Vegas to set aside Nye County’s resolution of supremacy. Coppelman later authored an opinion in the American Judicature Society Journal that while local government was not supreme, it did have the authority to use the coordination process set forth in FLPMA.
Summary
Coordination is a process far stronger than cooperation, consultation or collaboration. It is not supremacy and does not carry with it any type of veto or control over federal management. It does, however, authorize local government to come to the negotiation table on an equal basis with the federal management agency, which has the obligation to use good faith in trying to resolve conflicts between local and federal policies and plans.
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