Editor’s Note: I’m going to devote this page to news and views regarding Climate Change and the excuse it gives government agencies to regulate the population.
It’s incredible. There has been a 20-year PR campaign to convince the government and the public that we are all bad, killing the planet, and need to be severely regulated. This is costing our industry millions and it just could be bullshit.
What if we could prove that global warming is a hoax, the climate is changing as it has for millions of years, but the man-made aspect is not even close to harmful. What if we could prove Oil isn’t the Bad Guy. What if a few grubby bikers, an old attorney and some young environmentalists could blow a hole in the EPA, control freak, and anti-freedom mentality. What if they could improve the planet in the process, and we restore freedom where it belongs?
More and more our findings prove this contention in a massive way.
But you decide:
Climate Hustle: The film that changes the climate of debate on global warming
Concerns about man-made global warming have consumed nearly all other environmental issues as proponents claim increasing carbon dioxide will result in a global catastrophe unless nations drastically reduces emissions.
Global warming has evolved to be blamed for a range of issues beyond just rising temperatures or sea levels. Now rising CO2 emission are said to cause floods, droughts, tornadoes, hurricanes and even maladies like prostitution, bar room brawls, airline turbulence and less snow or more snow, depending on the season.
More than a year in the making, Climate Hustle is now smashing onto the scene to rock the climate debate and set the record straight. Produced by “CFACT Presents” and hosted by Climate Depot publisher Marc Morano, the film features prominent scientists from around the world, who used to warn about the dangers of man-made global warming but have reexamined the evidence and have now grown more skeptical or become outright skeptics of man-made climate change fears.
The film is not a one-sided documentary with only one narrative presented. Instead, Climate Hustle comes alive to the viewer with archival video clips and news footage spanning over 40 years.
The film presents both sides of the climate debate in an engaging and pop
culture-friendly way that walks viewers through the dire climate claims being made and examines them one by one.
Viewers of Climate Hustle will get an informative, humorous and entertaining journey through seven key sections that lay waste to the media-promoted climate claims.
For example: One powerful segment, called “Stacking the Deck,” shows how the notion of a “scientific consensus” on climate change is pure fabrication and is simply a political tool used to stifle debate.
Another segment, entitled “Sleight of Hand,” examines whether CO2 is really the villain it’s made out to be and shows viewers some of the crucial facts that Al Gore omitted from his famous propaganda documentary, An Inconvenient Truth.
Viewers are taken on a journey back in time to reveal centuries – yes centuries – of climate panic and fear. The film shows rarely seen clips of 1970s global cooling newscasts and how “stagecraft” was employed to juice the narrative of man-made global warming fears in the1980s.
Sea level rise scares? Polar bears? Polar ice melts? Climate Hustle offers viewers a virtual A-Z examination of the evidence for man-made climate fears. The film features expert opinions and data to reveal that on virtually every claim in the climate debate, climate activists have either greatly exaggerated the issue or are flat out wrong.
Climate Hustle viewers will also get a look at the increasingly outlandish claims of activists
who, in a form of “climate astrology,” want to blame every bad weather event – and societal evil – on man-made global warming.
The film has its moments of hilarity as comical climate change “tipping points” are exposed as utter nonsense and more suited to a stand-up comedy act. Viewers are walked through previous doomsday predictions on topics ranging from Y2K to the Mayan Calendar.
Perhaps the most poignant moment of the film comes when viewers are told there is literally no difference between holocaust deniers and climate “deniers.”
Exclusive interviews reveal activists who call for skeptics to be thrown in jail. By contrast, scientists are profiled who have reversed themselves on global warming fears, and far from profiting from their dissent, they
explain how their careers have been negatively impacted just for daring to challenge the so-called consensus.
Politically Left scientists are interviewed who reveal how “lonely” it is for them to dissent on man-made global warming. Climate Hustle is premiering in Paris during the UN’s COP21 climate summit, and will be scheduled for theatrical and home video release in 2016.
To view a link to the film’s trailer visit: https://www.youtube.com/watch?v=nXBzjBE9l5Q
To view a clip from the movie visit: https://app.box.com/s/tbzjfq0r5a7dicl6nn6g18bqo453bb73
ACTION FROM THE CLIMATE CALAMITY FRONT–I did communicate with Hardtail, president of the MRF, and he wanted to talk by phone last week but we didn’t hook up. He’s in Europe most of December on business (he’s an engineer for Ocean Spray Cranberries).
He stated that the MRF is all over the EPA issue and they have released many press releases on the subject. My opinion is they have voiced concerns, and report occasionally on the ethanol standards, production increases and dispute over production waivers pursuant to the Clean Air Act and congress’ promulgations, but I haven’t seen any strategy or direction on how to combat any of this to date other than their plea to write to your congressman to express concerns over blended fuels and increase in E-15 reserves.
The quandary, as I see it, is we as a people are caught between the battle of the experts once again. The standards, CO2 emissions concerns, greenhouse gases, 2017 volume requirements for Ethanol, climate warming and more are so technical that a layperson cannot understand it all.
When you have scientists and other so-called experts disagreeing on climate change, what is causing it if it’s actually happening, what is the greater danger contributing to CO2 emissions and so on, what chance do we have of knowing what is real and what is fantasy?
It’s like belief in God. Some have an unyielding devotion to believe in the existence of God, without tangible proof that he exists. Other’s call it an illusion or belief in a superstition. Those sides can argue to eternity, with neither having real proof to verify the argument.
With regards to our situation, we are stuck in the middle with each side arguing more on belief than “real evidence.” I don’t want to believe the planet is warming like some claim, and I don’t want to believe that man is the major contributor to this claim. But not being an expert, I can only cling to belief and faith that it isn’t so.
The one thing I do know as fact, is the EPA working in concert with European nations on Global Harmonization, is regulating business into submission through increased standards (some of which cannot be reached because technology doesn’t exist yet to meet those standards), punishing fines that cripple small manufacturers, Swat-team raids that violate constitutional protections and destroy business, families and bank accounts, and total refusal to co-ordinate planning on initiatives to meet these problems with local, non-governmental committees or agencies, as was mandated in the original clean air acts decades ago.
Without someone in congress to champion the cause of reining in the EPA, we are spinning in circles without an end in sight. Looking at the open comments document the EPA posted concerning the 2017 Ethanol volume requirements, it was clear that most comments were in favor of increasing the volumes and opposed waivers that allowed for lower volumes or retaining current levels.
Most of the comments came from interested parties, as expected, like corn growers and ethanol manufacturers. I could only find three submissions from our friends in the motorcycle community: ABATE of Michigan, ABATE of Illinois and ABATE of Pennsylvania.
There were a few other organizations that opposed the increased Ethanol production, most notably some antique car organizations, but most comments were in favor of increased production levels of E15.
The arguments for the most part were of a technical nature and included comments by manufacturers and gas station/service plaza owners and organizations, that were beyond my understanding, since they alluded to business practices and manufacturing technology. These are stakeholders representing huge companies. My other concern is how big of an impact is the motorcycle after-market industry and motorcycle riders in general going to have on this global stage?
–Tony Pan Sanfelipo
Investigator
Hupy and Abraham, S.C.
1-800-800-5678
My Response to Tony’s Report:
I agree regarding the highly technical aspects of this argument and I get a kick out of your equating it to the God debate. Regarding the God debate, don’t we have something in the constitution about this? You can debate and believe all you want for or against, but don’t pass laws. The question remains. Can we give up or give in? And what we hope to fight for goes way beyond the performance motorcycle industry to cars and trucks, anything performance.
I would rather equate the global science discussion and over regulation to the McCarthy Era. Can we allow the government to control everything with an exhaust pipe and put half of these industries out of business, only to discover tomorrow or a year from now that the transportation sector has a very small climate change footprint.
Plus, there is science and scientist who don’t agree with the regulators’ contentions. In fact, Australia, through scientific conclusions threw out recent regulations. Watch the documentary “Climate Hustle.” Plus, over the 40 some years we’ve been in this game, every time the government threw another law at the Biker’s Rights community, our band of grubby bikers stepped up, found the data, researched the facts and came back fighting with Freedom on our side.
–Bandit
Chiming in to offer up my two cents on all of this rhetoric.
Firstly, lets make it explicitly clear that the MRF is actively engaged on two fronts with the EPA:
1. The first is combatting the EPA’s instance that they have the authority to regulate the car and motorcycle racing industry, specifically the “tampering” of motorcycles which is what they call it when you add high performance parts to your bike that affects the amount of CO2 that is emitted into the atmosphere. Our strategy in combatting this is to address the agency’s overreach through legislation. This is the RPM Act, which we have made great progress on this year and I do expect to advance at some point though the chances of passage this year are looking increasingly slim.
2. The second area that we are engaging with the EPA is in regards to the RFS Standard – this is a law passed by Congress in 2007 that REQUIRES the EPA to issue mandates of how much biofuel (like ethanol) is used in the nation’s fuel supply. Like the RPM Act, our strategy here is with Congress. The EPA is simply fulfilling their congressionally mandated obligation – no amount of public comment is going to change that. The problem must be dealt with at the Congressional level via legislation. The MRF is involved with a larger coalition “Smarter Fuel Future” to push for larger RFS reform but is also working within a smaller spinoff group that is trying to make specific and targeted changes to the RFS standard that will satisfy BIKERS (but likely not the oil and gas industry – their lobbyists can fight that fight).
In both of these areas our strategy is to force the hand of Congress to reign in the EPA. I will tell you from experience, that going to the head of the EPA and pressuring her to “pull back” is an absolutely worthless exercise. Congress controls the purse strings of the agency and the authority of the agency. This is why we need the motorcycle community (10 MILLION PEOPLE IN THE U.S.) to tell their Congressperson about what changes they want made. This is called grassroots, folks.
Under the Obama Administration the EPA was advised to “push boundaries” and they did exactly that. Things will most certainly be different under a Trump Administration and will present an opportunity to help limit the agency’s jurisdiction. Again – this will have to be achieved via legislation and “regulatory reform” – the MRF has and will be present in these discussions. Though please be advised that a Trump Administration will not solve all of our problems. As a reaction to the Trump Administration, we will see more progressive states like California in particular, really push the envelope on state and local environmental regulations. This is where we need to be most diligent over the next 4 years.
Lastly, I would encourage us to not get lost or caught up in the bigger questions like the authenticity of climate change. There are far too many players with voices larger than ours. Instead, my advice is to decide specifically what we want to achieve and then formulate a plan to do that. Maybe it’s pass the RPM Act, maybe it’s to promulgate a new law mandating that E10 is legally required to be sold at all gas stations, maybe it’s that EPA emissions regulations supersede those of a state (i.e. California). Whatever it is that you want, now is the time to have that conversation.
But be forewarned – whatever it is we decide to try and get achieved will involve grassroots (that would be the “plea to write your Congressmen”) and $$$$$$. And unless I am mistaken, our MRF funding comes from RIDERS. Not from high performance parts manufacturers and not the aftermarket industry but the people who ride their bikes – and that’s who I’m working for.
-Megan
MRF
Response from the Investigator: Pretty much to the point, and I’m not in disagreement with a lot of what she says; I know the EPA is working under mandate, and we cannot, nor do we have the power or ability to force EPA to do anything. I think we all knew that already, so I feel a little “talked down to” from her comments.
Despite Trump making statements during his campaign that he would eliminate the EPA, I also know he doesn’t have the power to do that either, only Congress, as Megan assuredly scolded us, has the power to reign in the EPA.
My concern was some of the issues with the Tenth Amendment, which on first glance, would tend to reinforce our and the MRF’s position that the powers not given to the federal government should remain with the states on issues like this. The problem is some years ago, while sovereignty of the states was recognized and they were recognized as having the power to enforce regulations dealing with things like emissions, the actually policy making authority where these regulations originate was reserved for the federal government.
Thus, Congress can and hopefully will recognize that the over-regulation on companies and business is killing jobs and the economy. Megan realizes, as I did, that fighting the climate change theory is extremely difficult. Where we differ is she wants to totally abandon that argument, whereas I think it must be addressed as a driving force behind current and expanded regulation, based on questionable science.
You can’t effectively argue against something without some qualifying argument. It’s how I describe the disagreement I have over the helmet issue. Some, like the MRF, say we don’t have anything against helmets; we just want the choice to wear one. It’s become the mantra of the current rights leadership, and sounds good and makes the members smile. After all, we’re not the anti-helmet people. We’re the pro-choice people.
Well to me, that reminds me of my mother telling me to eat my greens, they’re good for me. But in defiance, I say, I don’t have anything against greens, I just don’t want to eat them. We all know who won that argument. Because just saying we want the choice to wear or not wear a helmet isn’t the same as saying we don’t want to wear a helmet because we don’t see positive proof that they’re effective or reduce fatality rates.
The government has tried to be our mother and say, “Shut up and just eat your greens,” but we’ve been successful in at least half the states in telling them we don’t want to wear them. But that could change in a heartbeat, and if we had to fight helmet laws nationally again, how do you tell congress you don’t want to wear a helmet without giving a reason? Fat chance now, since most of the states have said repeatedly we don’t have anything against helmets. Get my point?
Same holds true for the emissions problem, and the Ethanol reserves, etc. We can argue to Congress that we want the EPA to be pulled back, and certainly job loss and killing off some small businesses in the mix is a good argument, but it won’t outweigh the climate change greenies, who have a huge lobby, a lots of money (Ethanol plants, corn growers, and a host of supporting industry all making money off the production of Ethanol).
I’m not completely sure Trump will be compliant with hurting Ethanol and others, and I know he had some interests in some of the oil pipelines and cronies in the oil business, so I’m reserved on what, if any help we can count on from him.
Finally, Megan claiming that the MRF needs grass-roots activism (lobbying Congress) and $$$$ is interesting. She claims the SMRO’s are where the MRF gets its money, and that’s mostly true, and that’s who she works for.
Well, the amounts of money they get can’t be all that much, since they’re always working at fund raising, especially at conferences, and I can understand that. But the amount they raise is a pittance compared to the money that will be used to forward the other sides’ arguments. I may be misreading her intent, but to me it appeared she was disrespectful to the many motorcycle accessory companies, racers and builders out there. Those high performance parts manufacturers and aftermarket accessory makers are who their membership relies on, and if they go away, so will the bikes MRF riders enjoy.
I thought that a surprising way to end her letter. Just my two cents worth.
–Tony Pan Sanfelipo
Investigator
Hupy and Abraham, S.C.
1-800-800-5678
Cowspiracy: The Sustainability Secret is a groundbreaking feature-length environmental documentary following intrepid filmmaker Kip Andersen as he uncovers the most destructive industry facing the planet today – and investigates why the world’s leading environmental organizations are too afraid to talk about it.
Animal agriculture is the leading cause of deforestation, water consumption and pollution, is responsible for more greenhouse gases than the transportation industry, and is a primary driver of rainforest destruction, species extinction, habitat loss, topsoil erosion, ocean “dead zones,” and virtually every other environmental ill. Yet it goes on, almost entirely unchallenged.
As Andersen approaches leaders in the environmental movement, he increasingly uncovers what appears to be an intentional refusal to discuss the issue of animal agriculture, while industry whistleblowers and watchdogs warn him of the risks to his freedom and even his life if he dares to persist.
As eye-opening as Blackfish and as inspiring as An Inconvenient Truth, this shocking yet humorous documentary reveals the absolutely devastating environmental impact large-scale factory farming has on our planet, and offers a path to global sustainability for a growing population.
ABOUT THE FILMMAKERS
Kip Andersen’s environmental awakening came as a result of An Inconvenient Truth. After seeing the film, he began to recycle religiously, turn off lights constantly, shower infrequently, and ride a bike instead of driving. Andersen believed he was doing everything he could to help the planet by following the guidelines of national and international environmental organizations, but his life took a different direction when he found out animal agriculture is the leading cause of environmental destruction.
He is the founder of AUM Films and Media, a 501c3 non-profit focused on creating films and media that promote thrivability, compassion, and harmony for all life. He is also an entrepreneur, as well as a certified Jivamukti and Kundalini yoga teacher. He is a graduate of Cal Poly San Luis Obispo school of business and has called San Francisco home for more than a decade.
Keegan Kuhn is a videographer, award-winning documentary filmmaker, and professional musician living in the east bay of San Francisco. He has worked with nonprofit organizations and been involved in social justice movements for virtually his entire life. As a filmmaker, he helps organizations reach an ever-greater community of supporters with the highest possible quality films and videos. His film career has taken him as far as the remote interior of Alaska to document modern homesteaders, to the high deserts of the American west filming the nation’s remaining wild horses, to rural agricultural communities and dirty urban streets. He is motivated by a deep desire to shed light on untold stories of the most downtrodden in our society, and to raise to awareness through greater visibility of social justice issues.
COWSPIRACY FACTS
DIRECTOR’S NOTE:
The science and research done on the true impacts of animal agriculture is always growing. The statistics used in the film were based on the best information we had available while producing the film. We will continually update this list with further resources as they become available
– GREENHOUSE GASES –
Animal agriculture is responsible for 18 percent of greenhouse gas emissions, more than the combined exhaust from all transportation. [i]
Fao.org. Spotlight: Livestock impacts on the environment.
Transportation exhaust is responsible for 13% of all greenhouse gas emissions. [.i]
Greenhouse gas emissions from this sector primarily involve fossil fuels burned for road, rail, air, and marine transportation.
Fao.org. Spotlight: Livestock impacts on the environment.
Environmental Protection Agency. “Global Emissions.”
Livestock and their byproducts account for at least 32,000 million tons of carbon dioxide (CO2) per year, or 51% of all worldwide greenhouse gas emissions.
Goodland, R Anhang, J. “Livestock and Climate Change: What if the key actors in climate change were pigs, chickens and cows?”
WorldWatch, November/December 2009. Worldwatch Institute, Washington, DC, USA. Pp. 10–19.
Animal Feed Science and Technology “comment to editor” Goodland, Anhang.
The Independent, article Nov. 2009.
Methane is 25-100 times more destructive than CO2 on a 20 year time frame.
“Improved Attribution of Climate Forcing to Emissions.” Science Magazine.
Methane has a global warming potential 86 times that of CO2 on a 20 year time frame.
“Improved Attribution of Climate Forcing to Emissions.” Science Magazine.
Livestock is responsible for 65% of all human-related emissions of nitrous oxide – a greenhouse gas with 296 times the global warming potential of carbon dioxide, and which stays in the atmosphere for 150 years.
“Livestock’s Long Shadow: Environmental Issues and Options.” Food and Agriculture Organization of the United Nations. 2006.
Emissions for agriculture projected to increase 80% by 2050.
http://www.nature.com/nature/journal/v515/n7528/full/nature13959.html
Energy related emissions expected to increase 20% by 2040.
Energy Global Hydrocarbon Engineering
IEA, World Energy Outlook 2014
US Methane emissions from livestock and natural gas are nearly equal.
EPA. “Overview of Greenhouse Gases.”
Cows produce 150 billion gallons of methane per day. [xi]
Ross, Philip. “Cow farts have ‘larger greenhouse gas impact’ than previously thought; methane pushes climate change.” International Business Times. 2013.
250-500 liters per cow per day, x 1.5 billion cows globally is 99 – 198.1 billion gallons. Rough average of 150 billion gallons CH4 globally per day.
Converting to wind and solar power will take 20+ years and roughly 43 trillion dollars.
The Cost Of Going Green Globally
Even without fossil fuels, we will exceed our 565 gigatonnes CO2e limit by 2030, all from raising animals.
Oppenlander, Richard A. Food Choice and Sustainability: Why Buying Local, Eating Less Meat, and Taking Baby Steps Won’t Work. . Minneapolis, MN : Langdon Street, 2013. Print.
Source: calculation is based on http://www.worldwatch.org/node/6294 analyses that 51% of GHG are attributed to animal ag.
Reducing methane emissions would create tangible benefits almost immediately.
U.N. Press Release, Climate Summit 2014.
A RESPONSE FROM THE INVESTIGATOR
As for giving up or giving in, I think you know me better than to think I would Never throw the towel in when matters of rights or personal liberties are concerned.
You are right when you say the issue is much deeper than our niche in the scheme of things. As usual, two things loom large; money and control. Money comes from the huge business of alternative fuels and renewable energy. ??The greenhouse scare has helped to create new industries endeavoring to capitalize on alternative fuels. Ethanol seems to be king at the moment, with manufacturing plants popping up across the mid-west an elsewhere.
Corn crops are being devoted to Ethanol to meet the demands of volume dictated under the Renewable Fuel Standard. The greenhouse scare/conspiracy fuels the acquiescence is increased regulation, not only on car, diesel and motorcycle emissions, but also coal powered energy plants.
Since its creation in 1970, under Richard Nixon, the EPA has declared war on industry in America. Bolstered by the Intergovernmental Panel on Climate Change (IPCC), the war on coal powered energy plants and coal mining in general has cost thousands of jobs. By 2030, it’s predicted 34,000 jobs lost. The coal industry itself has already lost over 47,500 jobs. 37 percent of coal mining jobs in Kentucky have vanished since 2008, yet America relies on fossil fuel energy for 2/3rds of its electricity.
We tend to think of the assault on emissions as singular attack. But farming, mining, ranching and logging are all under attack from the EPA. This is costing jobs and eliminating small business altogether.
In California, independent truck drivers are going out of business because of the EPA and CARB. Standards and regulation on diesel particulate emission make older trucks illegal. Newer trucks or some able to convert have installed Diesel Particulate Filters (DPF), which are suspected in numerous semi-truck fires of questionable origin. These fires are not a consequence of crashes but rather spontaneous affairs. Interestingly, many of the original reports point to the filters but final incident reports exclude the cause and only refer to undetermined heat source. Was the EPA behind the exclusion of first opinion conclusions of origin of the fires?
Exhaust emission regulation has been at the heart of most of our problems dealing with after-market accessories. Before establishing any regulations or restrictions, federal agencies were required to “coordinate” with local government agencies, according to the National Environmental Policy Act of 1969.
Any federal agency action had to be submitted to environmental study and for coordination with local governments affected by such action. To be considered was the impact on society, culture and the economy. Recent hearings attended by independent truck drivers in Redding, California, indicated that local government was not contacted by or coordinated with the EPA or CARB on any of the regulations suppressing that industry. The fact that EPA and CARB continue to create more regulations and enforce existing ones, seemingly without regard to local government concerns, is most disturbing.
Even more disturbing is the move toward Harmonization of Motorized Vehicles based on European standards. That should scare the hell out of our industry.
It’s no secret that the EU, headed by Germany, has set a target of 2030 to eliminate all fossil fuel vehicles. The EU envisions an all-electric or at least alternative fuel motor vehicle culture.
The consequences of global harmonization reawaken all the fears of the “One World Government” that so many of us oppose. It goes so far beyond vehicles when you consider land acquisition, deforestation and the so-called reliance of foreign oil.
I suspect the reliance on foreign oil should be blamed partly on the EPA and its regulations. Regulations, not environmentalists, have slowed down or halted oil drilling operations in the U.S.
Our refineries are operating at capacity, and building new, more technologically advanced refineries, are stifled by EPA regulation. Just like coal burning energy plants, the regulations promulgated by the EPA make meeting those standards impossible because the technology to meet emission demands doesn’t exist yet.
So, instead of investing in our own domestic oil program, congress invested billions of dollars (taxpayers money) to explore alternative energy sources like wind turbines, solar panels and Ethanol. We know how the first two experiments turned out, and the jury is still out on Ethanol as a viable alternative to fossil fuels. As it stands, despite pouring billions of dollars into the search for alternative fuels, no technology or alternative fuels come close to replacing fossil fuel systems in place.
Sweden sought a 100 percent carbon-free emission for its power supply, relying on a combination of hydroelectric and nuclear power, and exchanging power with neighboring Scandinavian countries. It investigated substituting its nuclear power with wind power in order to reduce the demand for hydroelectricity. It found that it would have to supplement the system with power from fossil fuel (gas) to meet the demand, resulting in doubling the CO2 emissions.
Can the EPA also have a role in Second Amendment Rights? Consider the closing of the last lead smelting plant in America and the stockpiling of ammunition by federal agencies like Homeland Security. Why did the EPA also stockpile millions of rounds of ammunition after regulating lead smelting in the U.S. out of business.
I could go on, but I think finding allies in congress is essential. The Tenth Amendment was based on federalism, in which the power of government was possessed by independent sovereign states, as opposed to a centralized government with power reserved for a central authority.
To preserve the autonomy or sovereignty of the states, we have to have a Supreme Court made up of justices to understand and support the original intention of the Tenth Amendment to limit the powers of the federal government. In that respect, the Supreme Court is a more important player than even congress in our goal to reduce the regulatory powers of the EPA.
–Tony Pan Sanfelipo
Investigator
Hupy and Abraham, S.C.
1-800-800-5678
FROM THE FRONT: I’ll comment on Tony’s comments later this week
The core problem with the global warming movement is the whitewash/ lack of facts when questioning anything they say is the rule. The core of this is to create a global tax on carbon administered by the UN to transfer $ to other nations while they cut a slice off the top.
The UN is active in motorcycle emissions, they want a 78db limit worldwide on m/c and many other things that would make you and I sick to our stomach.
Keep an eye on Morano web site Climate Depot, sounds like he would be interesting to interview.
–anonymous supporter
INDUSTRY EMMISSIONS SEMINAR—
Some of the core issues holding our industry back are stifling EPA and CARB regulations. We want to bring shops and the industry up to speed on efforts to curb regulation.
In addition we will show a short film titled, “Climate Hustle.”
Keith R. Ball, from Bikernet.com and members of the industry will share their findings and efforts exclusively at the V-Twin Expo.
“The motorcycling, auto and truck performance industries are under fire,” said Keith. “But there is hope. Come and find out what’s happening.”
ALREADY SOME GOOD NEWS
Several sources are now officially reported what we have speculated over the last day or so: Oklahoma Attorney General Scott Pruitt is being named head of EPA by President-Elect Donald Trump.
My colleague Scott Segal, Head of Bracewell’s Policy Resolution Group, shared the following thoughts for the record:
I have watched Scott Pruitt develop over his six years as Oklahoma attorney general into a measured and articulate student of environmental law and policy. The office he headed was present and accounted for in the battle to keep EPA faithful to its statutory authority and respectful of the role of the states in our system of cooperative federalism. These skills will serve him well not only in leading EPA but also in participating meaningfully in the legislative and regulatory reform efforts promised by the next Administration.
Given that we are almost two decades overdue for an overhaul of the Clean Air Act, there is interest on both sides of the aisle to look at that statute.
Some have suggested that Pruitt hands might be tied because he participated in litigation against the Agency. This is a silly position. When you add up all the states that have participated in litigation on the Clean Power Plan alone it amounts to almost the entire United States. Further, Gina McCarthy herself sued the EPA as a Massachusetts state official only to eventually lead the Agency herself. There is no conflict in representing your state on litigation dealing with rules of general applicability and then serving your nation as a federal official.
__
You can reach Scott (202-262-5845), Jeff Holmstead (202-828-5852) or me if you have additional questions.
Frank Maisano
(202) 997-5932
Ethanol, another stupid idea mandated by Washington
“Global warming is the biggest scam in history. I am amazed, appalled and highly offended by it.”– Meteorologist and founder of the Weather Channel, John Coleman.
I swear that if you gave a group of lawmakers a lawnmower they would assemble a snow-blower that stalled every 30 seconds. Such is the case of ethanol, an idea whose time should have never come.
When I was the editor for Outstanding Investments in the early 2000s, I sat down with my uncle who operated a mixed farm for decades. With the internet, a piece of paper, a pencil and his 42 years of farming experience, we set about finding the then-current price of ethanol. We did the same with oil from the pump jack to the gas tank and even included the average discovery cost. According to our numbers, a gallon of ethanol was twice as expensive as a gallon of gasoline. Well worth it, the hardcore greens would say, if you stopped them on their bicycles and asked them.
Late last month the Government Accountability Office (GAO) announced that biofuels, the major one being corn, are costly, take a long time to produce (a growing season to be exact) and will neither make America less dependent on Middle Eastern oil or lower CO2 emissions. For the price of a phone call I could have told them this 15 years ago.
But the last thing the government wants is input from the public, even if it is correct. Their way creates a whole new program, in this case the Renewable Fuel Standard (RFS) program, which has set a grandiose target of 857 billion barrels by 2022, something that the GAO now says is impossible.
You would have thought somebody would have said you would need to plant 80 percent of cropland in the United States to hit that target, but nobody did. The GAO’s conclusion: “There is not nearly enough of this fuel to meet the program’s targets — nor will there likely be enough in the near future.”
But this is the kicker; research by the government found out that biofuels emit more carbon dioxide than gasoline!
Nowhere could I find the number of people working for the RFS, but they are eating high off the taxpayer’s hog. From 2013 through 2015 the federal government plowed more than $1.1 billion into research and development of advanced biofuels.
It is mind boggling to think about how much money the RFS has gone through since its creation in 2005. Enough money that it would help rebuild the nation’s crumbling infrastructure or, as a neocon would measure it, enough to buy an aircraft carrier, planes and all. And that is not even the worst of it.
More than half the corn grown in America is used for ethanol, taking up 50,000 acres that could be used for corn, which makes up 95 percent of the total feed grain consumed by livestock. More corn thrown into the gas tank makes for higher corn prices at the table. And it is not just corn; the vast acreage for growing fuel, increases the price of beef, pork, poultry and even fish. Inflation across the country is offset by the deflation resulting from the $10 billion a year charged to motorists to pump watered down gasoline into the fuel tank.
If you didn’t think it could get any worse, it does. Ethanol added into gasoline results in up to 10 percent lower mileage. And as any hot rod driver will tell you, gas mixed with ethanol causes a noticeable reduction in performance.
Chet Thompson, president of the American Fuel and Petrochemical Manufacturers, stated the obvious; that the EPA plan is “completely detached from market realities and confirms once again that congress must take immediate action to remedy this broken program.”
This will be an early test for President-elect Donald Trump. Either he supports grain growers or the petroleum producers. If he is honest in making the best deals he can for America, the dollars and cents equation and not lobbyist arguments will dictate the cessation of biofuels immediately.
This dog won’t hunt
Unfortunately biofuels are just one chink in the Green’s armor. The fundamental fact would strip them naked if there is no man-made climate change. This should be borne out by the fact that temperatures have not risen in the past 15 years and the temperatures that over the past couple of decades are well within the ranges earth has had over the past millennial.
If you have had the misfortune to see Al Gore’s movie, An Inconvenient Truth, for which he has received every award except the Medal of Honor, you might remember the segment where, across this gigantic screen behind him, CO2 levels and the earth’s temperatures going back 900,000 years is said to be shown. Gore points out that as CO2 increases so does the earth’s temperature. Not so say many scientists, most of them retired and therefore not in fear of losing their jobs if they speak out against climate change.
What they point out in Gore’s two lines is that it is temperatures that lead CO2 levels. This is such a small inconvenient truth for the former vice president who is a perfect crusader for the globalists to push their agenda for less independence and greater interdependence around the globe. For the past eight years he has had a lot of support from the world’s most powerful voice, President Barack Obama. Just weeks after ISIS had murdered 130 people in a series of attacks in France in 2015 Obama said: “Today, there is no greater threat to our planet than climate change.”
Funny, but most people would think that someone with a black balaclava and an AK-47 is a little more worrisome than a government-spun weather fantasy.
On its face climate change is nothing but a ridiculous fairy tale and people would know that if they invested less than an hour in reading the facts.
According to Skeptical Science, Volcanoes emit more CO2 than humans. Ian Pilmer, renown Australian geologist and a professor emeritus of earth sciences at the University of Melbourne, contends that, “Over the past 250 years, humans have added just one part of CO2 in 10,000 to the atmosphere. One volcanic cough can do this in a day.”
None of which distracts Gore who has a complete ignorance of science but is well-informed on building personal wealth. Gore grew up rich on Washington’s Embassy Row and then went on to Harvard where he avoided not only the Vietnam draft but also math. After losing an election he went on to make $200 million selling his sky-is-falling routine. And it’s an easy sell.
Obama pulls a number out of a hat that says that 99.5 percent of scientists agree that there is man-made climate change. I doubt you can get 99.5 percent of any group to agree on anything, even the best way to make toast. It is a made up number.
It was a questionnaire mailed to several hundred scientists or quasi scientists, of which only a third replied.
And consider this, one that even the Greens cannot dispute, are the facts stated in the March 27, 2009, issue of The Daily Signal:
Out of the entire atmospheric makeup, only one to two percent is made up of greenhouse gases with the majority being nitrogen (about 78 percent) and oxygen (about 21 percent). Of that two percent, “planet-killing” carbon dioxide comprises only 3.62 percent while water vapor encompasses 95 percent. And of the amount of carbon dioxide in the atmosphere, humans cause only 3.4 percent of annual CO2 emissions. What does this all boil down to?
The truth is climate change has become a religion and an extremist one at that. Some of the behavior of hard core environmentalists is similar to Islam.
According to a March 11 article in London’s Sunday Telegraph:
Timothy Ball, a former climatology professor at the University of Winnipeg in Canada, has received five death threats since he started questioning man’s impact on climate change. Richard Lindzen, professor of Atmospheric Science at MIT, said, “Scientists who dissent from the alarmism have seen their funds disappear, their work derided, and themselves labeled as industry stooges.” Nigel Calder, a former editor of New Scientist, said, “Governments are trying to achieve unanimity by stifling any scientist who disagrees. Einstein could not have got funding under the present system.”
But you will not find these facts on climate change because the mainstream media, like Obama and other former presidents, answer to the globalists.
It is hard to believe that 45 years after Watergate we trust the president of the United States. I suppose it is easier that way and, after all, society provides enough narcotics in pills, booze, weed, gambling and sports we just don’t care. Like the Jews that must have known they were being taken to their death, it had to help that they believed Germany would not do such a thing.
Soon we will know which side of the road Trump is on. Will he be independent and sign laws that make things better for Americans, or will he be a figurehead for the nefarious globalists? Two things should tell us the answer early next year: Trump’s decision on the Keystone Pipeline and whether the Trump administration allows for the spending of billions of dollars combating climate change, something that exists but has nothing to do with man.
Yours in good times and bad,
— John Myers
Sources:
http://dailycaller.com/2016/11/28/govt-admits-ethanol-mandates-are-expensive-and-failing/
http://freebeacon.com/national-security/supercut-obama-calls-climate-change-not-terrorism-our-greatest-threat/
https://www.skepticalscience.com/volcanoes-and-global-warming.htm
THIS JUST IN FROM THE CLIMATE DEPOT– Princeton physicist William Happer says that “if global warming were any other branch of science it would have been abandoned a long time ago.”
Climate scientists are, of course, obsessed with man’s carbon dioxide emissions. But Happer says this is essentially nonsense.
“All of the geological evidence indicates that CO2 is a minor player” in previous eras of warming, he said last week in a Climate Depot podcast. “We’ve had ice ages with 10 times more CO2 than we have today. That’s not supposed to happen, according to current computer models, but it did happen.”
–Climate Depot.com
[page break]
A MEMO FROM FRED KELLY GRANT
December 21, 2016
MARK:
It appears to me that CARB has its eyes set on ridding CA of motorcycles in favor of all electric vehicles just as it has set its sights on diesel trucks. The time for use of coordination is now before any regulations become final—and I have not verified that they haven’t been made final. My instincts are that they are still in the development stages, which is where local governments should be involved.
Yesterday I attended a water control board hearing for my two clients, the Roseville trucking company and the Tracy dairyman and I was astounded by the local elected officials who testified, almost begging, the Board not to impose the restriction that will ruin their economy—–when they should be demanding coordination.
California is a hardnosed state, witness its determination in legislature to be a sanctuary state and to fight Trump on every step of the staircase. But, it can be stopped in INDIVIDUAL CASES WHERE the right process is followed.
My client was fined $800,000, but after three hearings, I got it down to $31,000 where I recommended they settle because of the cost to me in fees of winning the case outright.
My dairyman is almost free of the contempt citation that he was faced with when I entered my pro hac vice appearance. I am confident now that I can save his dairy and keep him from contempt.
The first was a victim of CARB and the second the Water Control Board, the two most autocratic of the agencies.
–Fred
WHAT IS THE COORDINATION PROGRAM?
COORDINATION IS THE PROCESS DEVELOPED AND ESTABLISHED BY CONGRESS AS A MANDATE TO ADMINISTRATIVE AGENCIES TO USE ALL PRACTICABLE MEANS TO REACH CONSISTENCY BETWEEN FEDERAL ACTIONS AND PLANNING AND THE LOCAL GOVERNMENTS.
By Fred Kelly Grant, JD, University of Chicago School of Law; BA College of Idaho; Member, Maryland State Bar Association since 1963
(Preface: In developing this Brief, I obviously did not work alone. This version became a real tool with the help of Staci Grant, Jon Grant and members of the Board of Directors of Trademark America where I served as a member of the Board. The person who “put me onto” coordination as a strong principle of law that could work through local government, and on to the true importance of such local governments in framing policy for the federally managed lands was Bert Smith on a cold, snowy day in Jordan Valley when I was deprived of a warm afternoon of football to do a good deed for friend Dick Bass and learn what I could about a process that could save the ranchers of Owyhee County, Idaho. The legendary Chuck Cushman taught me how “coordination” could be used as a political tool in behalf of local governments. Much of the background was developed when I served as Member of the Board and then President of Stewards of the Range, then when I served as President of American Stewards of Liberty, and then as President of Trademark America where I worked when I put together this first formal brief. In all those assignments I worked on and smoothed the edges of the argument with aid from Margaret Hage Byfield, Dan Byfield, Mike Dail (Chairman of the American Stewards Board), other members of the various Boards, Sean Curtis and Carolyn Carey who listened, learned and brought coordination to Modoc County In California, Katherine Lehman who fought a herculean fight to persuade Jackson County of Oregon to help its citizens by forcing agencies to follow the law and who travelled endlessly with me in our almost thespian tour to convince people that Congress enacted the laws—they just had to ask. As preparations for the originally slated lawsuit moved along, the Sheriffs of Northern California participated in conferences, learning the operational methods of coordination, so that they could do their duties as local law enforcement heads to protect their counties: Sheriffs Dean Wilson of Del Norte, Jon Lopey of Siskiyou, Gil Gilbertson of Grant, and others followed in the footsteps of Sheriff of Owyhee County, Idaho Gary Aman who worked with me and with Owyhee County’s Commissioners and Coordination Planning Commission to make the Owyhee County program a model. Finally, but by no means least helpful in the work leading up to the point at which this brief was drafted, were Nick Dranias, Constitutional Director of the Goldwater Institute who picked coordination as one of the ten top principles that can be used by local governments to restore an actual, working federalism. Nick and I presented the coordination concept to the American Legislative Exchange Council which adopted it and offered it as a Model State Statute.)
THIS DOCUMENT BEGAN AS A WHITE PAPER TO BE SENT TO CHIEF OF THE FOREST SERVICE TOM TIDWELL.
The Chief appeared as a guest speaker at the Andrus Symposium on Public Policy and Lands a few years ago in Boise at Boise State University. I was also asked to speak at that meeting on the reasons why I thought the Owyhee Initiative Process had worked as a coalition in Idaho; Craig Gehrke was my co-speaker, he had served as vice chairman of the Owyhee Initiative Board. I had suffered a severe head injury during an auto accident just a few days prior to the event, and even though I had been released from the hospital, I didn’t feel up to par and was considering not appearing, but to let someone else make my presentation.
I did go to the reception the night before the scheduled presentation and met the Chief with Governor Andrus who I had served as counsel prior to his being named Secretary of Interior. Then I spoke with Rocky Barker, the famed writer on the environment for the Idaho Statesman, and he told me that one of Tidwell’s high level staff had come out just to find out how we managed to make the Owyhee Initiative work—-the Initiative brought to the table ranchers, most all the environmentalist groups in the State, local governments and recreation users to draft a workable plan that was enacted in and as part of the 100 land use bills that Senator Reid patched together. It was one of the first bills that President Obama signed.
When I presented that morning at the Symposium I made a very specific, pointed statement that the Forest Service DID NOT FOLLOW THE LAW WHEN IT CAME TO WORKING WITH LOCAL GOVERNMENTS—by comparison, I said that the BLM had learned something about the law, at least in Idaho, and had become a good coordination partner. I made the point looking right at the Chief and I saw the look of interest that said to me it was time to one-on-one discuss the concept with him.
He sought me out at the lunch break, and obviously we did not have time to go over the entire concept and what it means to the agencies, but I told him that several people working with me had requested that I put together a white paper on coordination and how it works. I explained my intention to do so with the Chief and offered to send him a copy. He gave me his personal card and asked me to send it to his personal email so that he would be sure to see it. I did explain that it is a concept that is well known by all the federal agencies because they all have provisions made for coordination in their own rule books.
Things were left that way for several weeks without my getting back to finishing the paper. In the meantime, the Counties of Shasta, Del Norte, Siskiyou and Modoc decided that they wanted to sue the Forest Service for non-compliance with the coordination requirement regarding the opening of (or restraint from closing) roads in the National Forests—the Service was using maintenance shortages to justify closing of roads that Shasta County, for one had detailed closely as having been open on a Forest Service map. The Four Counties’ county counsel met and requested that I take lead counsel role with them in the lawsuit. One of counsel said “If I’m stuck on a question from the Court, I want the guy who started all this right there with me to answer.” I agreed to take on the assignment, and then it became clear that there were two counties in New Mexico who would want to join, two in Idaho, three in the rest of the west, and an Irrigation District in Montana.
So, I suggested to the Shasta County Board which had been the one whose county counsel persuaded to be number 1 in the project, that before filing suit I submit to Chief Tidwell the White Paper I had told him about, and advise him that the document didn’t persuade him, then we were going to sue in the District of Columbia for at least 20 national forest counties.
By the time I got around to the “White Paper” , thus, it had become time to convert it into a brief format. I did so and explained the fact of imminent litigation unless the Forest Service gave in to the law.
I submitted the brief to Tidwell and after he read the brief, he asked me to meet with his director of planning and his head of ecosystem forest planning. I was delighted because it was ecosystem planning that stood as the base for what was happening in closing down the forests.
After about a one and a half hour meeting—they had both read the brief prior to the meeting, they asked me to speak with the Regional Forester over the five national forests that would have to be involved in the lawsuit: Randy Moore. I had a very difficult time getting an appointment set up. But once it was set, my assistant, Stacy Grant, and I arrived for the meeting only to be told that the meeting room had not been reserved and Mr. Moore was engaged in phone calls all morning. We were told that it would be impossible to see him even though we had traveled from Boise, Idaho to Sacramento just to see him.
Staci got on the telephone and called the Chief’s office in DC and was quite surprised when Chief Tidwell answered his extension. He said his secretary was off copying so he was answering the telephone. She told him of our plight and he said not to worry it, that he would take care of it. We sat down and read some Forest Service Magazines for a few minutes, and then were escorted up to see Supervisor Moore who “has been anxiously awaiting the opportunity to visit with you. There must have been a mixup in the instructions to the front desk.”
We met with Moore for two hours, and during that time he tried several times to promote the use of cooperation through cooperative agreements. I said we would be interested in that ONLY IF THE COOPERATION AGREEMENTS WERE WRITTEN IN SUCH A WAY THAT THEY INCLUDED THE SAME RESULT THAT WOULD BE REACHED IN COORDINATION: using all practicable reasons to find justification to reach consistency between the federal action and local handling of land issues. We did not budge, and finally I said “I know you’ve spoken to either the Chief or one of his sub-Chiefs and know that you’ve been told to “coordinate”, and I know that you’ve read the brief you have in front of you and have had plenty of chance to ask your counsel to review it, so I don’t know why we are still talking in terms of cooperation. The statutes say, and your rules say, and the cases say, that you MUST, you ‘SHALL’ COORDINATE.”
Finally as our session wound down, he said that he would direct all his forest supervisors to coordinate in the terms of the statute with any local government that wanted to coordinate and to the extent they wanted to coordinate. Those Counties that wanted to coordinate saw Travel Management Plans being called back in for meetings with the Boards of Supervisors for purposes of review of roads and trails that the Service had just arbitrarily closed. As a result, the law suit was not needed and was never filed. I simply changed the White Paper title to the following:
A WHITE PAPER comprehensively describing the coordination process as it is mandated by Congress and by the Secretaries of Agriculture and Interior, prepared in the format of a brief to be filed in any litigation necessary to enforce the coordination mandates.
By: Fred Kelly Grant
November 19, 2010*
*Even though the brief was written in 2010, the only things that have changed have been to the advantage of local governments. During the 10 years that the Owyhee Initiative was in progress, the material became dated, and Congress had many opportunities to diminish, rescind, water down, or completely throw out the statutory language that makes coordination with local governments a MANDATE. It did not do so; and in fact several agencies strengthened their rule requirements. In addition, the Goldwater Institute has now introduced Coordination as one of Ten Principles that can be used to restore federalism to local governments. For that reason, the following brief is still the beginning point, and must be expanded to include additional citations.
FKG November 28, 2014
FEDERAL STATUTES AND AGENCY REGULATIONS REQUIRE THAT FEDERAL AGENCIES COORDINATE WITH UNITS OF LOCAL GOVERNMENT IN ORDER TO ATTEMPT TO RESOLVE CONFLICTS BETWEEN LOCAL AND FEDERAL PLANS AND POLICIES.
A.THE COORDINATION PROCESS IS DEFINED BY CONGRESS AS A GOVERNMENT TO GOVERNMENT COMMUNICATION PROCESS BETWEEN FEDERAL AGENCIES AND UNITS OF LOCAL GOVERNMENT.
B.THE CONGRESSIONAL DEFINITION AND THE AGENCY DEFINITIONS PRESCRIBE ELEMENTS OF COORDINATION WHICH MUST BE IMPLEMENTED BY THE AGENCIES TO ASSURE A MEANINGFUL INVOLVEMENT OF LOCAL OFFICIALS IN THE DEVELOPMENT AND IMPLEMENTATION OF PLANS AND POLICIES.
C.THE ELEMENTS REQUIRE CONSIDERATION OF CONFLICTS BETWEEN LOCAL AND FEDERAL PLANS AND POLICIES AND METHODS FOR RESOLUTION OF THE CONFLICTS.
D.THE ELEMENTS REQUIRE IN NEPA PROJECTS THAT THE DEIS DISPLAY FOR PUBLIC REVIEW THE CONFLICTS THAT EXIST AND THE POTENTIAL RESOLUTION OF SUCH CONFLICTS.
E.COURT DECISIONS HAVE HELD THE DEFINITION OF COORDINATION FOUND IN STATUTES AND REGULATIONS BINDING ON THE AGENCIES.
A.THE COORDINATION PROCESS IS DEFINED BY CONGRESS AS A GOVERNMENT TO GOVERNMENT COMMUNICATION PROCESS BETWEEN FEDERAL AGENCIES AND UNITS OF LOCAL GOVERNMENT.
1.WHAT COORDINATION “IS”
Congress has required that the Bureau of Land Management and the United States Forest Service “coordinate” with units of local government within the planning process that is used to develop federal plans, policies and management actions. The definition that Congress provides for the term demonstrates that “coordination” is in fact a form of mutual intergovernmental communication between federal management agencies and units of local government on a government to government basis.
The Congressional definition, the legislative history of the section of the Federal Land Policy Management Act that contains the definition, and the interpretation given to the Congressional definition by the Secretary of Interior (through the Interior Planning Rules) and the Secretary of Agriculture (through the 1982 Planning Rules, and the Travel Management Rules) all make it clear that the goal envisioned by Congress and the Secretaries was that the coordination process would resolve conflicts between federal and local government.
To that end, the agencies are directed by Congress and the Secretaries to involve local officials in a meaningful way in the development of federal plans and policies. The agencies are directed to begin the coordination process at the earliest possible time in the development, so that conflicts can be taken into account and resolution can be attempted before the plan or policy is ever put into place.
The Congressional mandate and the Secretaries’ implementation regulations set forth very specific steps that must be followed in the intergovernmental coordination process. Those steps include review and analysis by the federal agencies of any relevant local plans or policies early in the development process. During that review and analysis if the federal agency personnel discover conflicts between what the federal agency proposes and an existing local policy or plan, those conflicts must be discussed with the local government. The agency personnel must weigh the impact of the federal plan or policy in on local government in view of the conflicts. After this analysis is complete, the federal agency must review possible alternative measures that could be used to resolve the conflicts.
The rationale for the Congressional mandate that was enacted into federal law in 1976 is certain: it is for the best of the federal government, for local government, and for the people who use the public lands and forests if conflicts are resolved at the governmental communication table. If the conflicts have to be taken to a court for decision, the waste of money and time is absurdly damaging. The agencies are already involved in multiple lawsuits brought by those who oppose multiple uses of the forests and public lands. Staff personnel have been removed from quality field management work to become paper pushers to ready court files. The ultimate goal Congress has set for the “coordination” process is CONSISTENCY between federal and local plans, policies and actions.
The Owyhee Initiative Project that was enacted as the Owyhee Public Lands Management Act of 2009, is hailed as a successful collaborative project that resolved decades old land use conflicts. The Project that will be described herein was formed by a County that had been involved in a successful coordination process with the Boise District and Twin Falls District of the Idaho State BLM office for two decades. Through those two decades, relationships between the BLM offices and the County Commissioners had vastly improved because of engagement of the County and BLM in the coordination process. The improved governmental relationship resulted in a closer relationship between permittees and the BLM managers than had ever been experienced in Owyhee County in southwestern Idaho.
The success of the government to government coordination relationship demonstrated to conservation groups that the best way to resolve many existing conflicts in land use was to attempt to join the planning table with the County. Joint and cooperative work associations were formed under and within the Initiative Project. BLM participation in the coordination process made possible the working collaborative team that developed the Initiative Project.
In those areas in which the federal agencies have made a good faith effort to follow the law as to coordination, amicable resolution of issues can be reached. In many cases such resolution has been made as to issues that have been divisive for decades. If the process is used and followed as directed by Congress and the Secretaries, it becomes a means to amicably resolve conflicts. All citizens of the nation are benefited by civil resolution of land use issues.
2. COORDINATION IS NOT COUNTY SUPREMACY!
Point A 1 describes what coordination “is”. Before developing the law found in statutes, regulations and case decisions, as to what the parameters of coordination are and what the obligations of the agencies are, we must take time to set one thing straight for this Record and for the meaning of coordination that is being put forward by the Counties and units of local government.
What local government commissioners, supervisors and other elected officials have found is that often agency personnel will balk at suggestions that the coordination process be established. Agency personnel have often opposed coordination because they understand it to be just another way for expressing the defunct and discredited “county supremacy” concept that was promulgated in the early 1990s.
Coordination is not COUNTY SUPREMACY. None of the local governments signing on to this Brief urge establishment of county supremacy. They are well aware that the old county supremacy proposals were and are unconstitutional. None of the local governments signing on to this Brief ever urged, relied on, or even suggested adoption of the county supremacy concept.
It perhaps seems unusual that time will be taken to explain what the coordination process is “not” in the eyes of the local governments signing on to this Brief. They do however believe that the sooner the disclaimer of county supremacy concepts is furnished to the agencies and the court, the quicker the parties can become focused on what is the law that is being urged by the local government signators to this Brief. It is not County Supremacy.
A fuller discussion of “county supremacy” will be set forth herein in order to demonstrate the difference between “coordination” and the concepts of “county supremacy”, “cooperation” and “consultation”. But, that fuller discussion will take place after discussion of what coordination is. We simply wanted to get the “county supremacy” red herring out of the way before even beginning to discuss the elements of coordination.
3. THE COORDINATION PROCESS IS ENACTED BY CONGRESS IN THE FEDERAL LAND POLICY MANAGEMENT ACT
a. The statute and the legislative history of the statute.
The first Congressional mandate of coordination appeared in the Federal Land Policy Management Act passed and signed into law in 1976.
Until the early 1970s the policy of the federal government was that the vast western rangelands would be disposed of through sale or exchange. Administrations prior to that of Richard Nixon and Congress considered the ownership and management of those lands to be temporary. That position was symptomatic of the Colonial view that the western lands were a burden, a burden to be shed in order to save money and management time.
The Taylor Grazing Act was enacted to provide temporary management in a form designed to bring some order to the method of claiming and grazing the lands. But, the Act made it clear that the federal government would eventually dispose of those lands.
When the Nixon administration and the leadership of Congress agreed that the federal government should retain permanent ownership of the lands, it became necessary to develop a comprehensive management protocol. Through the early 70s Congress worked on that management protocol, considering through two sessions whether to put the lands under the Forest Service, or put the lands and the forests under the Bureau of Land Management. The chess game for management authority continued for several years until the decision was made to place the rangelands under the BLM and maintain management of the Forests and Grasslands under the Forest Service.
As the debate continued, Congress considered many changes to management of the National Forests and a brand new protocol for the rangelands. Changes to the Forest acts and consideration of the contents of FLPMA occurred simultaneously within the committee structure of the Congress.
FLPMA PROVISIONS REQUIRING COORDINATION
Senator Robert Packwood of Oregon sponsored an amendment to the FLPMA version proposed by the Committee, an amendment that required the BLM to “coordinate” with local governments. His amendment was basically the language as it appeared in, and continues today in the law at 43 United States Code Section 1712:
“The Secretary shall, with public involvement and consistent with the terms and conditions of this Act, develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands. Land use plans shall be developed for the public lands regardless of whether such lands previously have been classified, withdrawn, set aside, or otherwise designated for one or more uses.
(b) Coordination of plans for National Forest System lands with Indian land use planning and management programs for purposes of development and revision
In the development and revision of land use plans, the Secretary of Agriculture shall coordinate land use plans for lands in the National Forest System with the land use planning and management programs of and for Indian tribes by, among other things, considering the policies of approved tribal land resource management programs.
(c) Criteria for development and revision
In the development and revision of land use plans, the Secretary shall—
(1) use and observe the principles of multiple use and sustained yield set forth in this and other applicable law;
(2) use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences;
(3) give priority to the designation and protection of areas of critical environmental concern;
(4) rely, to the extent it is available, on the inventory of the public lands, their resources, and other values;
(5) consider present and potential uses of the public lands;
(6) consider the relative scarcity of the values involved and the availability of alternative means (including recycling) and sites for realization of those values;
(7) weigh long-term benefits to the public against short-term benefits;
(8) provide for compliance with applicable pollution control laws, including State and Federal air, water, noise, or other pollution standards or implementation plans; and
(9) to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other Federal departments and agencies and of the States and local governments within which the lands are located, including, but not limited to, the statewide outdoor recreation plans developed under the Act of September 3, 1964 (78 Stat. 897), as amended [16 U.S.C. 460l–4 et seq.], and of or for Indian tribes by, among other things, considering the policies of approved State and tribal land resource management programs.
In implementing this directive, the Secretary shall, to the extent he finds practical, keep apprised of State, local, and tribal land use plans; assure that consideration is given to those State, local, and tribal plans that are germane in the development of land use plans for public lands; assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans, and shall provide for meaningful public involvement of State and local government officials, both elected and appointed, in the development of land use programs, land use regulations, and land use decisions for public lands, including early public notice of proposed decisions which may have a significant impact on non-Federal lands. Such officials in each State are authorized to furnish advice to the Secretary with respect to the development and revision of land use plans, land use guidelines, land use rules, and land use regulations for the public lands within such State and with respect to such other land use matters as may be referred to them by him. Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act.
The fact that Congress was considering the coordination process for both the Forest Service and the BLM simultaneously slips into this section of the statute through the inclusion of the “Secretary of Agriculture” coordinating with Indian Tribes.
The Legislative history of FLPMA shows that at least the BLM opposed the “coordination” language and urged Congress to delete it because it would make their job of managing the federal lands more difficult. Obviously Congress thought that was the objective of the language, by insisting that the management agencies work closely with local governments. There is language in the legislative history that makes it clear that Congress believed that federal land management was critical to the economic well being of local governments reliant on property taxes for revenue. So the Packwood amendment became law.
Clearly the Congressional goal was consistency.
NATIONAL FOREST MANAGEMENT ACT MANDATE
Because the work on developing the comprehensive management protocol of FLPMA took much longer than did the revisions of the Forest management process already in place, the National Forest Management Act was passed prior to enactment of FLPMA. The NFMA, in 16 United States Code, section 1604(a) requires that the Secretary of Agriculture “shall develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning process of State and local governments and other federal agencies.” Sub section (e) of Section 1604 provides that in developing, maintaining and revising plans for units of the National Forest System the Secretary “shall assure that such plans…include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.”
The section 1604(a) coordination requirement is completely distinct from the “public participation” element of plan review referred to in sub section(d). In the “coordination” sub-section there is no mention of the “public” or “interested public”. There is a distinct process directed for the relationship between the Forest Service and local governments.
Congress did not spell out the long, detailed definition of “coordination” in the National Forest Management Act as it did in FLPMA, but simply required “coordination” by the Service with local governments. There is absolutely nothing in the legislative history to show that Congress intended a different definition of “coordination” to bind the Forest Service. In fact, after adopting the definition of “coordination” in FLPMA, Congress later passed the Range Land Renewable Resources Planning Act which states that the Secretary “shall develop, maintain and, as appropriate, revise land use and resource management plans for units of the National Forest System coordinated with the land and resource management planning processes of State and Local governments.”
THE 1982 FOREST SERVICE PLANNING RULES MANDATE
The Secretary of Agriculture obviously believed that the Congressional definition of “coordination” bound the Forest Service, because when he issued the 1982 Planning Rules, he laid out the duty to “coordinate” in a manner at least as inclusive as Congress had in FLPMA.
The 1982 planning rules are the rules that the Forest Service must follow until new rules and regulations are issued in compliance with NEPA. On December 8, 2009 the Secretary published in the Federal Register a notice of intent to prepare an environmental impact statement for issuance of new planning rules. The Federal Register notice stated: “The agency’s expectations based upon its experience with the 2000 rule is that National Forest and Grasslands will use the 1982 rule provision, as permitted by the transition provisions of the 2000 rule, to revise and amend plans until a new planning rule is issued.” So by order of the Secretary of Agriculture the 1982 planning rules are applicable.
In those rules, 32 CFR Section 219.1 states the purpose and principles guiding the “process for developing, adopting, revising land and resource management plans for the National Forest System.” Sub-section B of Section 219.1 provides that “Regional and forest planning be based on the following principles:
…(9) Coordination with the land and resource planning efforts of other Federal agencies, State and Local governments, and Indian Tribes;
(10) Use of a systematic, inter disciplinary approach to ensure coordination and integration of planning activities for multiple-use management;
Section 291.7 of the 1982 planning rules is entitled “Coordination with other public planning efforts.” Sub section (a) requires that “The responsible line officer shall coordinate regional and forest planning with the equivalent and related planning effort of other Federal agencies, State and local governments, and Indian tribes.”
The remaining portion of section 291.7 then defines the elements of coordination which must be followed by the responsible officer of the Forest Service. Sub paragraph (c) requires that “The responsible line officer shall review the planning and land use policies of other Federal agencies, State and local governments, and Indian tribes.”
The Secretary provided that the Service’s review “shall include” all of the following:
“ (1) Consideration of the objectives of other Federal, State and local governments, and Indian tribes, as expressed in their plans and policies;
(2) An assessment of the interrelated impacts of these plans and policies;
(3) A determination of how each Forest Service plan should deal with the impacts identified; and
(4) Where conflicts with Forest Service planning are identified, consideration of alternatives for their resolution.”
Sub section (d) of 219.7 requires that in “developing land and resource management plans” the responsible line officer “shall meet with…representatives of other Federal agencies, local governments, and Indian tribal governments at the beginning of the planning process to develop procedures for coordination.” The rule also requires that in developing the forest plan, the responsible line officer shall seek input from “local governments…to help resolve management concerns in the planning process.”
Finally, sub section (f) of 219.7 requires that “A program of monitoring and evaluation shall be conducted that includes consideration of the effects of National Forest management on land, resources, and communities adjacent to or near the National Forest being planned and the affects upon National Forest management of activities on nearby lands managed by…other government agencies or under the jurisdiction of local governments.”
Even more recently, when the Forest Service began its round of transportation route considerations, the Secretary issued Travel Management Rules that required coordination with local government in “designation of roads, trails and areas for motor vehicle use” Travel Management Rules, 37 CFR Section 212.253.
THE BLM RULES MANDATE COORDINATION
The Secretary of Interior issued a regulation that clearly defined what steps BLM responsible officers must take in order to comply with the FLPMA mandate of coordination with local government.
In 43 CFR Section 1610.3-1 the Secretary issued the following regulation:
1610.3-1 Coordination of planning efforts.
(a) In addition to the public involvement prescribed by §1610.2, the following coordination is to be accomplished with other Federal agencies, state and local governments, and federally recognized Indian tribes. The objectives of the coordination are for the State Directors and Field Managers to:
(1) Keep apprised of non-Bureau of Land Management plans;
(2) Assure that BLM considers those plans that are germane in the development of resource management plans for public lands;
(3) Assist in resolving, to the extent practicable, inconsistencies between Federal and non-Federal government plans;
(4) Provide for meaningful public involvement of other Federal agencies, State and local government officials, both elected and appointed, and federally recognized Indian tribes, in the development of resource management plans, including early public notice of final decisions that may have a significant impact on non-Federal lands; and
. . . . . .
(d) In developing guidance to Field Manager, in compliance with section 1611 of this title, the State Director shall:
(1) Ensure that it is as consistent as possible with existing officially adopted and approved resource related plans, policies or programs of other Federal agencies, State agencies, Indian tribes and local governments that may be affected, as prescribed by §1610.3–2 of this title;
(2) Identify areas where the proposed guidance is inconsistent with such policies, plans or programs and provide reasons why the inconsistencies exist and cannot be remedied; and
(3) Notify the other Federal agencies, State agencies, Indian tribes or local governments with whom consistency is not achieved and indicate any appropriate methods, procedures, actions and/or programs which the State Director believes may lead to resolution of such inconsistencies.
In the succeeding section, 1610.3-2, the Secretary made it quite clear that coordination was not to be mere cooperation or discussion, was not to be mere listening to the words of the local government officials. He mandated that coordination was to be focused on reaching consistency between federal and local policies to the “maximum extent” permitted by federal law.
He also made it clear that absence of a formal local plan did not permit the federal agency to evade the reach for consistency. The second paragraph in the following section states clearly that when there is no formal local plan, the federal agency must seek consistency with any local policy on the issue being addressed by the federal government.
Further, the Secretary made it clear that this obligation of reaching for consistency is so important that the State Director of BLM must submit to the Governor of the State any discrepancy or inconsistency between the federal plan and the local policy. The rule provides that if the inconsistency cannot be resolved, there is an appeal to the National Director of the BLM.
With these provisions it is clear that the Secretary of Interior put the greatest possible emphasis on the need to seek consistency between federal and local policies, plans and actions.
The specifics of 43 CFR 1610.3-2 are as follows:
Ҥ 1610.3-2 Consistency requirements.
a) Guidance and resource management plans and amendments to management framework plans shall be consistent with officially approved or adopted resource related plans, and the policies and programs contained therein, of other Federal agencies, State and local governments and Indian tribes, so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public lands, including Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise, and other pollution standards or implementation plans.
(b) In the absence of officially approved or adopted resource-related plans of other Federal agencies, State and local governments and Indian tribes, guidance and resource management plans shall, to the maximum extent practical, be consistent with officially approved and adopted resource related policies and programs of other Federal agencies, State and local governments and Indian tribes. Such consistency will be accomplished so long as the guidance and resource management plans are consistent with the policies, programs and provisions of Federal laws and regulations applicable to public lands, including, but not limited to, Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise and other pollution standards or implementation plans.
(c) State Directors and Field Managers shall, to the extent practicable, keep apprised of State and local governmental and Indian tribal policies, plans, and programs, but they shall not be accountable for ensuring consistency if they have not been notified, in writing, by State and local governments or Indian tribes of an apparent inconsistency.
(d) Where State and local government policies, plans, and programs differ, those of the higher authority will normally be followed.
(e) Prior to the approval of a proposed resource management plan, or amendment to a management framework plan or resource management plan, the State Director shall submit to the Governor of the State(s) involved, the proposed plan or amendment and shall identify any known inconsistencies with State or local plans, policies or programs. The Governor(s) shall have 60 days in which to identify inconsistencies and provide recommendations in writing to the State Director. If the Governor(s) does not respond within the 60-day period, the plan or amendment shall be presumed to be consistent. If the written recommendation(s) of the Governor(s) recommend changes in the proposed plan or amendment which were not raised during the public participation process on that plan or amendment, the State Director shall provide the public with an opportunity to comment on the recommendation(s). If the State Director does not accept the recommendations of the Governor(s), The State Director shall notify the Governor(s) and the Governor(s) shall have 30 days in which to submit a written appeal to the Director of the Bureau of Land Management. The Director shall accept the recommendations of the Governor(s) if he/she determines that they provide for a reasonable balance between the national interest and the State’s interest. The Director shall communicate to the Governor(s) in writing and publish in theFederal Registerthe reasons for his/her determination to accept or reject such Governor’s recommendations.
[48 FR 20368, May 5, 1983, as amended at 70 FR 14567, Mar. 23, 2005]”
SUMMATION: The Statutes require that the Forest Service and the BLM coordinate with local government in a real, good faith, meaningful effort to reach consistency between federal and local plans, policies, and management actions. The Secretaries of Agriculture and Interior implemented the statutory requirements with specific regulations specifying the steps that their responsible officers must take to comply with the law’s requirement to work toward consistency through the defined “coordination” process.
WHAT COORDINATION IS “NOT”
1.Coordination is NOT ‘COOPERATION’ OR ‘COOPERATING AGENCY’
Had Congress intended that the BLM and Forest Service only “cooperate” with local governments, it certainly would have said so. The word “cooperate” is not unknown to Congress; in fact it is used many times in the text of the statutes governing the BLM and the Forest Service. Instead, Congress ordered the agencies to “coordinate” and spelled out the steps that must be taken as part of “coordination”. The Secretary of Agriculture did not define “coordination” as being mere “cooperation”. The term “cooperation” does not require a reach toward consistency, in fact it does not even contemplate or infer that consistency must be reached in order for agencies to “cooperate”. But, “coordination” does require the reach toward consistency.
Throughout the west local governments are experiencing a tendency on the part of Forest and Regional Supervisors to hesitate, to the point of refusal, to coordinate as mandated by Congress and the Secretary of Agriculture. The Service encourages local governments to accept a much lesser role called “cooperating agency” status. Local governments which succumb to this insistence lose the opportunity to negotiate for “consistency”. In fact, they lose the opportunity to negotiate at all, giving up their status in favor of sitting at a planning table with no leverage whatever.
Coordination as mandated by Congress, and spelled out by the Secretary in the 1982 Planning Rules is NOT THE SAME AS COOPERATION OR COOPERATING AGENCY.
A real life example of the difference between the terms can be found in Fremont County, Wyoming. For several years, the Fremont County Commissioners were involved with the Forest Service’s interdisciplinary planning team as a “cooperating agency”. The County grew frustrated and concerned because their input during planning sessions never saw the light of day in the Service’s drafts. Not only was the County position not adopted, it was never even discussed; no reasons were given for discounting the County’s input.
Ultimately, the Commissioners, with help from the American Stewards of Liberty, advised the Forest Supervisor that the County intended to engaged in the “coordination process”. At a meeting with the Supervisor the Commissioners agreed that they would continue at the planning table, but that the provisions of “coordination” must be strictly followed. The Commissioners made it clear that they understood that the coordination process placed local government on a higher, separate plain than the position given to the general public.
As a result of the County’s action, its input began to be really considered. When a draft of the plan was finished, the Supervisor told the Commissioners that the draft was off to D.C. for approval and then would be released to the Commissioners and the general public at the same time. The Commissioners objected to that, insisting that inconsistencies between local and federal positions must be worked through before public release. When the Forest Supervisor balked, the Commissioners sent a letter to the Department of Justice that was a basic notice of intent to sue.
Within days, the Supervisor reconsidered and presented the draft and underlying data to the Commissioners for mutual review and consideration of alternatives for resolution of conflicts.
THEREIN LIES THE BASIC DIFFERENCE BETWEEN COORDINATION AND COOPERATION.
In California Resources Agency v. United States Department of Agriculture,(September 29, 2009), the federal district court for the Northern District of California held firmly that the Forest Service is obligated under the National Forest Management Act as well as its own planning rules to “coordinate” with local and state government. In that case, the state of California sued, charging that the plans issued for the Angeles, Cleveland, Los Padres, and San Bernardino National Forests were issued without coordination with the state as required by law. The Court found in favor of the State even though there had been lengthy discussions between the Service and the State. The Court found that just one element of coordination had not been met, and therefore put on hold the Service plans.
In that case the Service put forward the same arguments that are currently used by Forest and Regional Supervisors who refuse to “coordinate” with local governments in the same state, California, in which the decision was issued. The Service argued that it had talked with the State and listened to the State’s position, thus coordinated. The Court disagreed that coordination had been accomplished. The Court pointed out that the Service had failed to discuss the State’s Roadless Rule in its ROD, and thus failed to point out the inconsistencies between the State’s rule and the ROD. The Court held that this failure to perform an element of coordination “significantly prohibits the public’s ability to understand the competing priorities of the Service and State”. The Court held that coordination requires far more than just listening to the position of the state or local government, that it requires the Service to analyze the inconsistent positions, discuss them and consider alternatives for resolving them.
Had the Service been required only to “cooperate” with the State, the result of the decision would have been immensely different. “Cooperation” or the “cooperating agency” status does not include and require performance of all the specific elements spelled out in the definition of “coordination”. “Cooperation” does not meet the statutory requirement of coordination.
2.COORDINATION IS NOT MERELY “CONSULTATION”
A variety of commonly used dictionaries define the term “consultation” to mean “to ask the advice or opinion of another” or to “deliberate together”. The Forest Service could “consult” with a local government simply by talking to the governing body and listening to its position, opinion or advice. But, that would not satisfy the definition of “coordination”. As used by Congress and spelled out by the Secretary of Agriculture, “coordination” means far more than “consultation”. So said the Northern District federal court in California Resources Agency v. United States Department of Agriculture, supra.
In California Native Plant Society v. City of Rancho Cordero, 172 Cal. App. 4th 603, 91 Cal Rptr 3d 571 (Certified for publication May, 2009) the California Appellate Court rejected an argument that a “coordination” requirement was satisfied by “consultation.”
In that case the City of Rancho Cordero argued that “coordination” was satisfied when the city consulted with the United States Fish and Wildlife Service. It argued that it met its coordination responsibility by “trying to work together with [fish and wildlife] by soliciting, carefully considering, and responding to comments from the [Service].”
The Court disagreed, holding that coordination means more than mere cooperation or consultation. It held that “coordination” means more than trying to work together with someone else. The court said that to “coordinate” is:
“to bring into a common action, movement, or condition”; it is synonymous with “harmonize.” (Merriam-Webster’s Collegiate Dict., supra, at p. 275, col. 1.)
Indeed, the very dictionary the City cites for the definition of the word “coordinate” defines the word “coordination” as “cooperative effort resulting in an effective relationship.” (New Oxford Dict., supra, at p. 378, col. 3.) Although the City suggests “coordination” is synonymous with “consultation” — and therefore the City satisfied its “coordination” obligation under the general plan at the same time it satisfied its “consultation” obligation under the plan– that is not true. While the City could “consult” with the Service by soliciting and considering the Service’s comments on the draft EIR, the City could not “coordinate” with the Service by simply doing those things. The City may be correct in asserting “[c]onsultation is not a synonym for ‘agreement,’” but Action NR.1.7.1 required more than “consultation” with the Service; it required “coordination,” and by definition “coordination” implies some measure of cooperation that is not achieved merely by asking for and considering input or trying to work together.
Had the City intended the obligation under Action NR.1.7.1 to be one of mere “consultation,” it could have used that word, as it did in Action NR.1.1.3. The fact that it did not do so supports the conclusion that the City intended “coordination” to have a different meaning than “consultation,” consistent with the dictionary definitions of those words.
As in California Native Plant Society v. City of Rancho Cordero, and California Resources Agency v. United States Forest Service, had Congress and the Secretary of Agriculture intended only cooperation or consultation, they could have said so. Both the Congress and the Secretary used the terms “cooperate” and “consultation” at other points in the text of the statutes and rules. But, as to the relationship of the Service with local government, they both required “coordination”.
3.COORDINATION IS NOT “COUNTY SUPREMACY”
The concept of County Supremacy, that County Government can dictate management to the federal agencies is Unconstitutional Because It Is In Conflict With the Supremacy Clause of the United States Constitution.
COORDINATION IS DISTINGUISHABLE FROM COUNTY SUPREMACY BECAUSE IT IS REQUIRED BY FEDERAL STATUTES THAT COMPRISE THE SUPREME LAW OF THE LAND. IT IS CONSISTENT WITH, NOT INCONSISTENT WITH, FEDERAL LAW.
It is important once and for all to dispel any notion that the “coordination process” is in any way connected with the “county supremacy” movement of the early 1990s. “Coordination” is not even consistent with “county supremacy”.
The difference between “coordination” and “county supremacy” has repeatedly been pointed out by American Stewards of Liberty, many local governments and I. But, even to this day, some recalcitrant Forest Service employees try to link the two concepts together in order to avoid coordinating as required by Congress and the Secretary of Agriculture.
The “county supremacy” concept argued for supremacy of county government over the federal management agencies. Clearly that concept violates the Supremacy Clause of the United States Constitution that provides that the Constitution and any law made “pursuant thereto” is the supreme law of the land.
“Coordination” does not challenge federal law, it is based on federal law. The Constitution charges Congress with management of the federal lands. In the exercise of its management mandate, Congress has delegated duties to the Forest Service to manage the National Forest lands and to the Bureau of Land Management to manage the federal rangelands. The delegations are stated in the National Forest Management Act and subsequent statutes related to the Forests, and in the Federal Land Policy Management Act and subsequent statutes related to the rangelands. Those statutes are made “pursuant to” the Congressional provision for management by Congress. So, they are the supreme law of the land. And, “coordination” is included in those statements of the supreme law, thus “coordination” is mandated by the “supreme law of the land.”
“The Sage Brush Rebellion” leads to county supremacy.
The County supremacy movement no doubt was a direct result of the western rebellion against federal management known famously as the “Sage Brush Rebellion.” The “rebellion” by western ranchers, loggers, miners, and recreation users sprang from the major enlargement of federal regulations of western lands during the administration of President Jimmy Carter. Federal controls nearly tripled as the President and Congress took control of of lands that had been used for revenue production and for recreation use from the time the western states entered the Union.
The so-called “Rebellion”, was a movement described by United States News and World Report on December 1, 1980 as:
“a 20th-century conflict…[that] pits ranchers, loggers, miners and others against Washington bureaucrats in a fight over the West’s land, water and mineral resources.”
. . . .During President Carter’s years in the White House, relations between the West and the federal government have deteriorated to the point where widespread resentment has flared into open conflict.
Named for the fragrant bush that abounds in the area, the Sagebrush Rebellion began as a fight over the federal government’s vast land holdings and now encompasses almost any issue that causes friction between Washington and the West.
During a campaign stop in Idaho Falls, Idaho, [Ronald Reagan] pledged: ‘The next administration won’t treat the West as if it were not worthy of attention. The next administration will reflect the values and goals of the Sagebrush Rebellion. Indeed, we can turn the Sagebrush Rebellion into the Sagebrush Solution.
. . . . .
“Westerners hope, with Reagan sitting in the White House the conflicts between Washington’s bureaucrats and the West will end. “
Of course, the conflicts did not end; they continued even though Congress had mandated coordination as a means of conflict resolution in 1976. But, the “coordination” provisions were ignored by the federal agencies and went undiscovered by local governments for another decade and a half.
As the Sage Brush Rebellion began to wane, the conflicts between western citizens and users of the federal lands did not diminish. Rather, the conflicts became more and more inflamed. Citizens turned to their local governments, mainly county commissioners, for a solution to the impact of regulatory policies on their incomes and livelihoods. Since the economic stability of a county depends on the economic stability of its citizens, the counties began to seek a means to equalize the power or authority of the federal agencies.
Catron County New Mexico adopted what became known as a county supremacy ordinance. In the ordinance, Catron County declared its superiority of sovereignty over the lands lying within its boundaries. The ordinance restricted the manner in which federal employees could perform their duties, and even over their entry into the county to perform their duties. The ordinance even sought to impose criminal penalties on federal agents who violated the terms of the ordinance. Enactment of the county supremacy ordinance created a fire storm throughout the west.
With a glimmer of hope that through such ordinance local interest could be protected, one county after another began to mimic the Catron County ordinance. One such county was Boundary County in northern Idaho where the major federal management agency was the United States Forest Service. Boundary County commissioners enacted the Catron County ordinance almost verbatim.
Soon after Catron County enacted its supremacy ordinance, the commissioners of Owyhee County Idaho sought my assistance in preparing to defend the county and its ranchers from a proposed BLM resource management plan that would have instantly reduced grazing by Forty percent. The Plan would have put every rancher in the County out of business.
My opinion was that the Idaho Supreme Court would strike down any ordinance even similar to that of Catron County. I believed that the Boundary County ordinance would be declared unconstitutional as soon as it reached court. But, after reviewing the language of FLPMA, I suggested that Owyhee County pursue a “coordination” process that would give them a seat at the table, and impose on the BLM an obligation to seek consistency. Certainly, a forty percent reduction in grazing would be inconsistent with any economic policy of the County.
The Owyhee County commissioners initiated the “coordination process”.
As I suspected, both the Idaho District Court and then the Idaho Supreme Court struck down the Boundary County ordinance. In Boundary Backpackers vs. Boundary County, 128 Idaho 371, the Court held that Congress holds the exclusive right to manage the federal lands, a power that cannot be thwarted by state or local law. The decision was so direct and clear that it never had to be repeated in another state court.
The Idaho decision frames the real difference between the coordination process and county supremacy. Congress does have exclusive management power over the federal lands. That power granted by the Constitution has been upheld many times by the United States Supreme Court. In the exercise of its exclusive power over the federal lands Congress has mandated that its management designees, the Forest Service and the BLM, “coordinate” their planning and management processes with local government. This coordination mandate is included in federal statutes enacted under Congress’ exclusive power, thus it is part of the supreme law of the land.
Peter Copellman, who was deputy assistant attorney general in the division of environmental and natural resources division in the department of justice, pointed out the unconstitutionality of the county supremacy ordinance in a paper that was published in the American Judicature Journal. In that same paper, he pointed out that county government did in fact have authority to initiate the “coordination process” set forth in FLPMA. He correctly stated that this process would give local government a meaningful role in management of the federal lands. Copellman was co-counsel to Lois Schiffer representing the federal government in the lawsuit that set aside the Nye County assertion of ownership of the federal lands. Schiffer made the statement during the court proceeding “we welcome local participation in the land management decision.” That statement was made on July 28, 1995. Unlike the county supremacy position, the coordination communication process is based on federal law and is “the local participation in land management decisions” referred to by both Schiffer and Coppelman.
As the county supremacy position was winding its way toward destruction, certain anti-grazing, anti-logging environmental groups used the Boundary County decision to scare counties away from any process that gave local government an economic lift. At least one, perhaps more, of those groups sent copies of the Boundary County decision to every county government in the Pacific Northwest with a letter claiming that it was unlawful for any county to try to interact with the federal management agencies.
Of course, the letter was misleading because it did not distinguish between county supremacy and the “coordination process”.
The anti-grazing and anti-logging environmentalist organizations were upset with the fact that local government had found a way to sit at the table, a relationship which the environmental groups had enjoyed for many years. The environmental organizations had and still have paid staff that can spend hours and days in the offices of the management agencies—time that cannot be spared by ranchers, loggers, farmers, recreation users and water users. Coordination provides the means by which local government can represent these multiple users in an even handed negotiating manner—and in a government to government process that excludes the environmentalists. The reason Congress provided this unique government to government process is clear: local governing boards have the responsibility of funding public services with revenue from property taxes. Because of the masses of federal land from which no tax revenue is drawn, it is important to local elected officials to have some meaningful input into management of the federal lands to try to deter adverse impact on the use of private land and on the economy of the government. Through coordination, the local governing boards can place emphasis on the “human environment” that is often ignored by those interested only in the “natural environment”. The environmentalist organizations have no responsibility to fund necessary public services, no responsibility to protect the economic stability of the people or the local government.
From the time the Boundary County decision was sent to the Pacific Northwest Counties through today, there are units of local government which believe that it is unconstitutional to insist on intergovernmental coordination. In Montana, the first response of the Forest Service to a request for coordination by the Glen Lake Irrigation District, clearly a unit of local government under Montana law, was that coordination violated the supremacy clause. The Service relied on an old opinion of the Montana Attorney General that focused on the Boundary County case. The same response was made to the request for coordination by Fremont County in Wyoming. In each case, the local government explained the difference between the county supremacy concept and coordination. Such explanation should not have been necessary—the Service’s own Planning Rules spelled out the meaning of coordination.
So, I have to believe that in each case the Service was simply bluffing in an attempt to avoid what the law requires.
As I pointed out at the Andrus Conference on Public Lands and Public Policy in the Spring 2010 Symposium at Boise State University, over the years the BLM has begun to lessen its resistance to coordination while the Forest Service continues to resist complying with the law. The position of some higher and mid management of the Service is ironic in view of the clarity of the Secretary’s instructions in the 1982 Planning Rules.
Some Forest Service personnel are willing to comply with the law. In Custer County, Idaho, Frank Guzman, Supervisor of the Challis-Salmon Forests has agreed to coordinate with the County Commissioners without threat of lawsuit. He promptly responded to a County letter requesting coordination, met in a very successful and amiable first meeting and readily scheduled a second. In Wisconsin, in the Forest, the Supervisor readily agreed to coordinate with the towns of
In Wrangle Alaska, the District Ranger was fully open to the coordination process upon the first request from the Borough Assembly. In Modoc County, California, the Supervisor of the Modoc Forest and the Ranger have worked coordinately with the County Supervisors for nearly two decades.
But, in California, the Supervisor of the Trinity-Shasta Forests Sharon Heywood has steadfastly resisted complying with the law; and her violations are backed apparently by Randy Moore, the Regional Forester. From Siskyeu County in the North through Shasta County Supervisors are ready to file lawsuits to force compliance. The waste of time and money on such lawsuits is an absolute shame in view of the clear mandate of Congress that was designed to prevent such waste.
CASE DECISIONS IN BOTH FEDERAL AND STATE COURTS IMPLEMENT THE STATUTORY AND REGULATORY MANDATE OF COORDINATION
Several times federal agencies have resisted the Congressional and regulatory mandated of coordination with local government to the point at which litigation became necessary. Each time the federal agency has lost. Each time the court has said that coordination means just what this Brief points out in Part, a meaningful relationship that is far more than mere cooperation or consultation. The courts have ruled that the agency must reach out toward consistency between local and national positions, the exact point being urged by a great number of counties and districts against Forest Service personnel at this very moment.
Even though the main cases have been referred to hereinbefore, this section of the brief will set forth the specific facts and law related by the decisions in order to demonstrate that they are on all fours with the issue of coordination with the Forest Service in the cases joined in this lawsuit. These decisions, and others the deciding courts relied on, implement the statutes and regulations set forth in _________hereinabove. The decisions in each case require the non-coordinating agency to follow the law, and they prohibit moving forward on a decision not coordinated in accordance with the statutes and regulations.
A. Utah County v. Gale Norton, Sec. of Interior
This case involves the failure to coordinate by the Bureau of Land Management, not the Forest Service. But when Forest Service officials shrug the case off for that reason, as many have, they not only miss the mark, they miss the entire target. The case decision is important because it demonstrates that “consistency” is the goal of coordination which the federal agency has to attempt to reach. We have already demonstrated how Congress intended the consistency requirement to be included whenever it used the term “coordination” regarding a federal agency’s performance in intergovernmental affairs. We have also demonstrated how the Secretary of Agriculture has recognized Congressional intent by requiring a reach for consistency in the 1982 Planning Rules.
So, it would behoove the Forest Service and this Court to recognize the applicability of Uintah to these combined cases.
In the Utah case decision, the federal district court in Utah made clear that the BLM would not be allowed to issue and implement a management decision that had not been preceded by “coordination” that tried to reach consistency with local policy. In the case styled Uintah County and the Ute Indian Tribe v. Gale Norton, Secretary of Interior and the United States Department of Interior and Bureau of Land Management, Civil Case No. 2:00-CV-0482J, the decision was issued by United States Senior District Judge Bruce S. Jenkins on September 21, 2001, and filed on the same date.
1.Facts in the Case:
In June, 2000, the BLM issued a Record of Decision calling for the release of 80 wild horses into what was known as the Bonanza Herd Area on federally owned and managed rangeland located in Uintah County, Utah.
The Resource Management Plan for the area in which the Bonanza Herd Area is located was issued by the BLM in 1985. That Plan called for zero wild horses to be maintained in the Bonanza Herd Area. The District Court however found that the BLM had never adhered to that Plan. In fact, by 1999 there was a herd of at least 250 wild horses in the Bonanza. In that year, after an outbreak of Equine Infectious Anemia, the BLM gathered and tested that number of horses. The infected horses were euthanized and the “negative testing” horses were put under quarantine by the Utah State Veterinarian until April 4, 2000.
Once the quarantine was lifted, the BLM issued an Environmental Assessment containing the decision to release 80 “negative-test” horses back into the Bonanza Herd Area.
It should be noted that this was a “management decision” not a plan or planning effort. It was a management decision based on the existing Resource Management Plan, even though the Plan called for zero wild horses in the Bonanza Herd Area.
2.Allegations of the Plaintiffs
a. Uintah County
After unsuccessfully trying to get the BLM to alter its decision, Uintah County filed the lawsuit in which the District Court applied the coordination provision of FLPMA to set the decision aside. The County charged that the BLM failed to follow the process of coordination outlined in the Federal Land Management and Policy Act, thus failed to allow the County’s “procedural rights” “including consistency review requirements under 43 USCA Section 1712 ( c) (9) and 43 C.F.R. Section 1610.3-2.”
The statutory provision, set forth hereinabove, provides that the BLM “shall” “coordinate the land use inventory, planning and management activities [for federal lands]…with the land use planning and management programs of. . .local governments”.
The statute also provides, as pointed out hereinbefore, that the coordination process concludes with the objective of reaching consistency between federal and local plans: “Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act.”
Uintah County also relied on 43 C.F.R. Section 1610.3-2, also set forth hereinbefore. In that rule the Secretary of Interior specified that the coordination process MUST be focused on reaching consistency between federal and local policies, plans and actions. The rule, quoted by the Court states, as set forth hereinbefore:
“a) Guidance and resource management plans and amendments to management framework plans shall be consistent with officially approved or adopted resource related plans, and the policies and programs contained therein, of other Federal agencies, State and local governments and Indian tribes, so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public lands, including Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise, and other pollution standards or implementation plans.
(b) In the absence of officially approved or adopted resource-related plans of other Federal agencies, State and local governments and Indian tribes, guidance and resource management plans shall, to the maximum extent practical, be consistent with officially approved and adopted resource related policies and programs of other Federal agencies, State and local governments and Indian tribes. Such consistency will be accomplished so long as the guidance and resource management plans are consistent with the policies, programs and provisions of Federal laws and regulations applicable to public lands, including, but not limited to, Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise and other pollution standards or implementation plans.”
The rule makes it clear that consistency must be sought unless there is federal law that prohibits the consistency. The Secretary places such emphasis on reaching consistency that he requires that the State Director submit any known inconsistencies to the Governor for resolution prior to issuance of a plan. When resolution is not reached, the Secretary provides that an appeal shall be taken to the national director of the BLM. (Fn 1)
b.The Ute Indian Tribe
The Tribe charged that “the BLM failed to consult adequately with the Tribe before implementing the Decision, and. . .failed to review the Decision for consistency with tribal and local land management plans.” (Page 15 of Slip Opinion, attached to the Brief for convenience.)
Even though the Tribe has vast authority to require consultation on a constitutional level as a sovereign nation under United States Supreme Court interpretations, the Court decided the case in favor of the Tribe and County just on the “coordination” provisions of FLPMA. Because it decided for the Tribe on the “coordination” ground, it did not have to reach the constitutional “consultation” ground.
3.The Response and Assertions of the BLM.
a. The BLM first tried to evade the issue by denying that either the Tribe or the County had “standing” to sue.
The BLM attempted to dodge being forced to respond to the charges by relying on a procedural claim that neither the County nor the Tribe had “standing” sufficient to file their complaints.
The Court disagreed. As to the County, the Court said that the County had a legitimate interest “in the implementation of its own land management plan.” The Court buttressed its decision on a prior Ninth Circuit Court of Appeals decision in American Motorcyclist Association v. Watt, 714 F.2d 962 (9th Cir. 1983}.
Judge Jenkins pointed out that in that case “the court [Ninth Circuit] recognized that the county had standing to bring an action against the BLM based on its allegations of injury concerning inconsistencies between the resource management plan and the Inyo [California] County Plan.”
The Court also pointed out that the County had “raised valid health, safety, and environmental concerns: the Decision is not only inconsistent with the County plan, it adds a threat of EIA infection to private horses and limits the amount of available forage. . .and poses an imminent risk of harm. . .to the health and welfare of livestock within the County’s jurisdiction.” (Page 13 of the Slip Opinion)
The Court’s somewhat lengthy discussion of the “standing” issue demonstrates that “standing” will be found whenever a local government or Tribe alleges failure to coordinate (or consult) regarding “any revision to the [Resource Management Plan], by amendment, or by a decision to change or modify management practices”.
Because of the importance of this issue to an attempt to persuade a federal management agency that it must coordinate or be successfully sued, the Court’s discussion is set forth at length:
B. California Resources Agency v. United States Department of Agriculture
On September 29, 2009, United States District Judge Marilyn Hall Patel in the Northern District of California, issued a decision implementing the coordination mandates of the National Forest Management Act and the 1982 Planning Rules, both of which have been set forth at length hereinabove.
The case decision resulted from a complaint filed by the State of California alleging a failure by the Forest Service to coordinate with the State regarding the State’s land and resource management processes. The plaintiffs were the California Resources Agency, the California Department of Forestry and Fire Protection, and the People of California represented by then Attorney General, and now Governor-elect Edmund G. Brown.
The State also claimed violations of the National Environmental Policy Act by adopting a forest plan for four national forests without adequate environmental review.
The case turned on the holding by the Court that the Forest Service did in fact commit a procedural violation of the National Forest Management Act and the Planning Rules by failing to “coordinate” in every aspect prescribed by the Act and Rules.
a. The facts of the case
In 2001 the Forest Service issued a notice of intent to revise the forest plans for four southern California forests. In 2004 the Service requested public comment on a draft Environmental Impact Statement related to the revision. In November, 2004, the California Secretary of Resources wrote to Secretary Ann Veneman emphasized the need for “closer partnerships with states.” He also emphasized specific points on which the State insisted that the Service observe principles consistent with State policy. He sent the same list of specifics to Forest Regional supervisor Jack Blackwell in early 2005.
Throughout the next few months the California Secretary advised the Service several times that California’s interests were not being meaningfully considered.
The Forest Service response was that it had adequately covered California’s concerns.
After the Final Environmental Impact Statement was issued, California filed the lawsuit, claiming violations because the FEIS did not include “any discussion of California’s policy on roadless areas”. The State claimed that by failing to describe the California policy so that the conflicting positions of the State and the Forest Service were evident to the public, the Service violated the coordination requirements of the statute and Planning Rules.
The Forest Service throughout claimed that it had adequately coordinated.
b.The California allegations
The State alleged that the Service “ignored the State’s roadless policy by not placing it in the FEIS and discussing the inconsistencies between the State’s policy and the Service’s conclusions in the FEIS.
The State also alleged that the Service failed to adequately study the environmental impacts of the preferred alternative. It claimed that the Service did not include a sufficient range of alternatives, and that the Service did not adequately address the impacts of oil and gas exploration on the California Condor.
c.The Forest Service Response
As in the Uintah County case, supra, the federal agency attempted to evade the issue by challenging the right of the State to file the lawsuit. The Service claimed that the State could show no sufficient imminent harm or injury.
As to the merits of the “coordination” claim, the Service asserted that the statutory and regulatory requirement did not “require the Forest Service to adopt the State’s position and that the coordination was adequate.” The Service contended that the “coordination” requirement only created “an amorphous duty to ‘talk to state entities and consider their views.’” (In the words of the Court at page 15 of the opinion).
The Service claimed that its interpretation of the statutory requirement of “coordination” must be given deference by the Court under the doctrine of Chevron USA, Inc. v. Natural Resource Defense Council, 467 U.S. 837, 842-45. As this Court knows, the Chevron doctrine calls for deference to agency interpretations of facts within its primary jurisdiction, and of agency rules issued for guidance in applying facts.
The Service also contended that it did in fact coordinate with the State by talking with it and discussing its position, and that the State failed to take a specific policy position on which the Service could react. Thus, the Forest Service contended that the State had absolved it of any technical violation of the coordination rule.
d.The Court’s Decision
The Court ruled against the Forest Service on each of its points.
First, it found that California did in fact have standing to bring the lawsuit, a standing that allows each of the plaintiffs in this case to challenge the Service’s failures to coordinate.
The Court emphasized the geographical proximity of California to the Forest involved in the dispute. The Court concluded that “geographical proximity to and use of areas that will be affected by the agency’s policy” is sufficient to create standing to sue. The Court said:
“California is not merely geographically proximate to the areas of issue—those areas are within its boundaries. In a case involving a challenge to a Forest Service decision to allow logging in the Sierra Nevada Forest, the Ninth Circuit held that ‘special solicitude’ should be afforded California’s stake in its natural resources’. Sierra Forest Legacy v. Rey, 516 F.3d 1228 (9th Cir. 2008)”. . .
“Congress plainly recognized and endorsed the respective states’ interests in the management of national forests by enacting the provision of the NFMA requiring the Forest Service to coordinate forest planning with state resource management processes. See 16 USC Section 1604(a). In light of this statutory recognition, it would be odd indeed to hold that California has no concrete interest in activities in the national forests. California has a concrete interest in the management of national forests within its borders.” (Fn. 2)
This decision applies equally to each of the local government entities in this Case. Each is directly proximate to the areas of the Forest that lie within its boundaries. Each has the same “special solicitude” as to its stake in the condition of its natural resources. And as to all plaintiffs, Congress “recognized and endorsed” their interests by requiring the Service to coordinate with “local government”. The same statute relied on by California recognizes the same standing of local governments—in the very same section of the statute.
The Court also ruled against the Forest Service on its argument that under Chevron, the Court should defer to its position that coordination requires only that the Service “talk to state entities and consider their views.” First, the Court said that Chevron did not require deference to the Forest Service’s interpretation of a statute or a statutory term, citing Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988).
Further, the Court held that even if the Service were to be allowed to interpret the statutory meaning of “coordination”, the interpretation would not be that given by counsel in litigation, but that given in regulatory fashion by the Secretary of Agriculture. It held that the 1982 Planning Rules provided an interpretation of coordination that far exceeded the mere duty to “talk. . .and consider. . .views.”
The Court held that it would follow what the Rules say about “coordination”, not what the Service alleged it to mean. In “endnote” 7 to the decision, page 32 of the opinion, the Court says that it “looks to agency regulations, which are entitled to Chevron deference, for guidance about what it means to ‘coordinate with’ the states [or local governments which are included in the same rules on the same basis as state government]”
The Court pointed to the Rules, particularly 36 C.F.R. Section 219.76, cited extensively hereinbefore, and acknowledged that the rule requires far more than just “talking and considering”: prior notice to the state or local government (subsection b); reviewing the state or local policies and documenting the results of its review (subsection c); meeting with responsible state or local officials (subsection d); seeking state or local input regarding management concerns and areas where additional research is needed (subsection e); and “giving consideration to the effects of the National Forest management on nearby lands” (subsection f). (Page 16 of the opinion)
The Court referred extensively to the portion of the Rules that explains what the Service’s “review” of state or local policies must include:
1.Consideration of the objectives of state, local governments and Tribes as stated in their policies;
2.Assessment of the interrelated impacts of these local policies with federal;
3.Determination of how the Service’s plan should deal with the “interrelated impacts” [which would include “inconsistencies”]; and
4.“Where conflicts with Forest Service planning are identified, consideration of alternatives for their resolution.” (Page 16 of Opinion, emphasis added)
The plaintiff local government entities rely on the same rule provisions: the Forest Service has not followed the rules emphasized by the Court in California Resources Agency as to each of the Plaintiffs. It has not demonstrated in Travel Management Plans the four elements required by the Secretary of Agriculture and emphasized by the Court: consideration, assessment, determination of how to deal with “interrelated impacts”, and consideration of alternatives to resolve conflicts. The Plaintiffs have pointed out the inconsistencies to the responsible Forest Service officials in their respective areas, and those officials have refused to follow these rules and to DEMONSTRATE IN THEIR EIS DOCUMENTS HOW THEY HAVE COMPLIED.
It is the latter failure that caused the Court in California Resources Agency to prohibit further use of the Forest Service plan. The Court held that the specific violation of the Service was that it did not “display” in its EIS the results of its “review” which must include “display” in the EIS of each of the four elements of the review set forth above.
The Court relied heavily on the importance of the demonstration of compliance with these elements of “review” by displaying compliance in the EIS:
“Even if the Forest Service’s review of California’s policy was impeded by California’s failure to fully engage in the planning process, the rule nevertheless required the Forest Service to display the results of its review, however impeded. . . .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….
“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.”
These plaintiff local governments have not “impeded” the Service by failing to “fully engage in the planning process”. In fact, these plaintiffs have repeatedly urged the Forest Service to engage with them. These plaintiffs have taken energetic steps in their own planning process, and have attempted to engage the Service to consider the conflicts and inconsistencies between the local plans and policies and those being put in place by the Service. In these cases it has been the Forest Service that has impeded coordination by absolutely refusing to engage with the local government plaintiffs.
So, when the Court in California Resources Agency granted summary judgment to the State and concluded that the “final environmental impact statement at issue. . .was issued in violation of the NFMA and NEPA” it did so on a case far less favorable to the State than are the facts presented to this Court by these local government Plaintiffs.
What the Forest Service failed to do in that case it has failed to do in the instant cases in spades! In these cases the Forest Service has totally and completely refused to engage in coordination as spelled out in the statute and Secretary of Agriculture’s 1982 Planning Rules.
D. California Native Plants Society v. City of Rancho Cordordovo, 172 Cal. App. 4th 603, 91 Cal. Rptr. 3d 571 (Cal. App. 3rd District, 2009)
1.The facts of the case.
This case centered on challenges to the city’s approval of a residential and commercial land development project known as the Preserve at Sunridge.
The project site of over 500 acres was located in a “Vernal Pool Region” which contained vernal pools [“seasonally inundated shallow depressions underlain by an impermeable layer of soil, generally hardpan or bedrock”, “inundated with water for various periods of times depending on the depth, extent and duration of rainfall and ambient temperatures” ] that provide habitat for two threatened and endangered species: vernal pool fairy shrimp (threatened) and vernal pool tadpole shrimp (endangered).
In 2004 the United States Fish and Wildlife Service, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers formulated a “conceptual level strategy” for avoiding and minimizing harm to aquatic resource habitat in the area of the project.
The City of Rancho Cordero’s General Plan provided that the City must design mitigation of impact on the species and vernal pools “in coordination with the U.S. Fish and Wildlife Service and the California Department of Fish and Game”. The City’s Zoning law required that any project approved must be consistent with the General Plan. In order to approve a project lawfully under the zoning law, the City would have had to “coordinate” with the Fish and Wildlife Service as required by the General Plan.
2. The Allegations of the Plaintiff Native Plant Society.
The Plaintiff Society alleged that the city did not “coordinate” with the Service, rather that it approved the project “over the [Service’s] repeated objections that the [mitigation measures] were inadequate.”
3. The City Defendant’s Response
The City claimed that it did satisfy the coordination requirement because it “consulted” with the Fish and Wildlife Service and made its views known in the Environmental Impact Review. (prepared under the California Environmental Quality Act)
The City claimed that “to ‘coordinate’ means to ‘negotiate with others to try to work together effectively’” The City argued that it did so by “trying to work together [with the F & W Service] ‘by soliciting, carefully consulting, and responding to comments from [the Service]’”.
4. The Court’s decision
The Court rejected the City’s definition of what the Plan means when it requires “coordination”. The Court said that “the concept of ‘coordination’ means more than trying to work together with someone else.”
To further its point, the Court set forth the meaning of “coordinate” in specific terms. The Court’s emphasis on the fact that “coordinate” means far more than cooperate or trying to work together, has already been set forth in Section ____________of this Brief. But Plaintiffs repeat it here because it is imperative that this Court understand that the meaning of “coordination” in even the generic use of the term is consistent with what Congress has intended for “coordination”, an intention implemented by BLM and Forest Service rules. The Court said that:
“to bring into a common action, movement, or condition”; it is synonymous with “harmonize.” (Merriam-Webster’s Collegiate Dict., supra, at p. 275, col. 1.) Indeed, the very dictionary the City cites for the definition of the word “coordinate” defines the word “coordination” as “cooperative effort resulting in an effective relationship.” (New Oxford Dict., supra, at p. 378, col. 3.) Although the City suggests “coordination” is synonymous with “consultation” — and therefore the City satisfied its “coordination” obligation under the general plan at the same time it satisfied its “consultation” obligation under the plan– that is not true. While the City could “consult” with the Service by soliciting and considering the Service’s comments on the draft EIR, the City could not “coordinate” with the Service by simply doing those things. The City may be correct in asserting “[c]onsultation is not a synonym for ‘agreement,’” but Action NR.1.7.1 required more than “consultation” with the Service; it required “coordination,” and by definition “coordination” implies some measure of cooperation that is not achieved merely by asking for and considering input or trying to work together. Had the City intended the obligation under Action NR.1.7.1 to be one of mere “consultation,” it could have used that word, as it did in Action NR.1.1.3. The fact that it did not do so supports the conclusion that the City intended “coordination” to have a different meaning than “consultation,” consistent with the dictionary definitions of those words.”
The City contended that the Court’s view of “coordination” would subjugate the City’s authority to that of the US Fish and Wildlife Service. The Court disagreed, but again pointed out that “coordination” means far more than mere “solicitation and rejection of input from the agencies with which the City is required to coordinate.”
The Court remanded the case to the trial court with instructions to issue a mandate that the project was approved in violation of the Zoning law of the City that required consistency with the General Plan, a Plan that required “coordination” that was not engaged in by the City.
The Plaintiff units of local government have called on the Forest Service to do no more and no less than “coordinate”. The California case makes it clear that “coordinate” means more even in general usage than the “cooperation”, “cooperating agency”, and “consultation” often urged on local governments by the Forest Service.
The Forest Service has not “coordinated” with these plaintiffs within the general meaning of “coordination” as set forth in California Native Plants Society. It has not coordinated within the definitions provided by the Congress and the Secretaries of Interior and Agriculture. In fact, in these cases, it has not even engaged the Plaintiffs in any effort of meaningful discussions of the differences between local policies and federal. It has openly and deliberately refused to follow the law.
CONCLUSION
For the reasons set forth herein, plaintiff ______________County requests that the Court grant its motion for summary judgment requiring the Forest Service to enter into the coordination process fully as expressed in the National Forest Management Act, the Federal Land Policy Management Act and the 1982 Planning Rules issued by the Secretary of Agriculture (optional request: requests that the Court enter a declaratory judgment declaring that the statutory and regulatory requirements of coordination as outlined by the County in its complaint and affidavits are in fact a correct statement of the law binding on the Forest Service defendant).
SOME OF THE CAMPAIGNS OF COORDINATION THAT HAVE BEEN VICTORIOUS AGAINST AGENCY ARBITRARY AND CAPRICIOUS ACTIONS
1. Victory for 4 tiny Texas towns against the powerful Texas Department of Transportation and EPA and Federal Highway Department to stop Rick Perry’s Trans Texas Corridor, a toll road that would be the first leg of the NAFTA Superhighway
Four small Texas towns of total population of 6000 stopped planning and construction of Governor Perry’s Trans Texas Corridor which was the first leg of the NAFTA SUPERHIGHWAY; The Corridor was taken off the table when we proved over 27 months that EPA and Texas Department of Transportation had failed to coordinate.
Hundreds of Thousands of Texans had protested the building of the toll road, all tolls would have been paid to a Spanish company, Cintra, in perpetuity and the company would have owned every business built along the entire toll road from Mexico to Oklahoma; the highway began at a Chinese port city on the Mexican coast and passed through Texas with no US Customs inspections anywhere; it was a quarter mile wide and physically divided the towns and school districts—but Perry was unrelenting and said “no is not an option.”;
The lead NEPA lawyer for Regional EPA came from Houston to tell the 4 unpaid mayors that they did not have to coordinate under NEPA, but after I spent twenty minutes going through the law, he sat back and let the coordination begin.
We brought them to a standstill and after 27 months, the Highway Department told EPA and Texas that we would beat them in court so they should withdraw the plan and they did.
2.5 California National Forests were reopened for a re-do of travel management plans with coordination with the counties this time around.
I represented five California counties in forcing the forest service to reopen their travel management plans for 5 national forests in order to coordinate those plans with the counties, without going to court. The Forests had shut down the travel management plan process without coordination with the counties. I wrote the Tidwell brief, shared it with him and his two top planners in DC: the eco-system planner and the NEPA planner and they had me visit with the regional supervisor in California who then advised the forest supervisors to reopen and coordinate to the extent that the counties wanted. In the process, sheriff Jon Lopey of Siskiyou told the Service they would close no road or trail unless he specifically said it was safe to do so.
3.The Secretary of Interior (Salazar) stood down from an expected decision to destroy the dams on the Klamath River.
For Siskiyou County in northern California stopped Salazar, from issuing order to destroy the 4 dams on the Klamath River that provide flood control and extra water for a profit making extra crop of hay for the farmers and ranchers Accompanied two supervisors to DC to raise the non-coordination argument but he had decided not to take on that battle.
4.STATE OF COLORADO DEPARTMENT OF TRANSPORTATION REVERSED A DECISION TO REROUTE WARREN BUFFET’S RAILROAD THROUGH THE TWO BUSINESSES THAT SUPPORTED THE ECONOMY OF LINCOLN COUNTY COLORADO.
Margaret Byfield and I went to Lincoln County Colorado to assist the county board in a coordination show down with the state department of transportation. The department had already approved the concept of rerouting Buffet’s newly purchased railroad in order to placate the wealthy suburbs on the Denver front. The rails would run right through the site on which sat the two businesses (a trucking company and a sales yard) that supplied the economic stability of the county. The director of the department came from Denver to explain why they did not have to coordinate because they were a state agency and this was not a federal action. I got from him a semi-reversal as soon as I went through the connections of law and showed I was prepared for a total affirmative action. Reason it applied is that the company had used funds from federal agencies and programs, so NEPA applied. Before I finished, and I was citing language from the rules I had handed them, he stopped me and said they were wrong, he could see they had to coordinate and they would set aside their decision and coordinate with Lincoln County about the route.
5.KEPT OPEN CAMP GROUNDS IN FREMONT COUNTY, WYOMING WHICH WERE CHIEF SOURCE OF ECONOMIC STABILITY FOR THE COUNTY
Through the coordination process Margaret Byfield and I attended a meeting of the Board of Fremont County Wyoming to assist them in their confrontation with the forest service which had announced that it would be closing all campsites in the County because of diseased trees—afraid that tourists would be harmed when the trees collapsed. The camp grounds were crucial to the economy of a county next to west Yellowstone which has lost all commerce except tourism. The Forest Supervisor did not like it, but did coordinate, including reaching consistency with the county policy which we wrote: cut down diseased trees so they do not constitute harm or danger to tourists and campers.
6.“PERSUADED” BONNEVILLE POWER ADMINISTRATION TO CEASE BUYING PRIVATE LAND AND DONATING IT TO THE TRIBES OR THE GOVERNMENT THUS REMOVING IT FROM BENEWAH COUNTY, IDAHO’S TAX BASE.
As with Texas and Colorado, the BPA did not want to coordinate and came in prepared to argue that they didn’t have to. I went through the statutory structure step by step to demonstrate that the pseudo federal agency had the obligation to coordinate with the County before buying or selling any property which could form part of the tax base of the county.
They acknowledged that they would consult with the Benewah board before buying any more property, denied that they had to coordinate, until I produced President Obama’s Executive Order directing all agencies and organizations using federal dollars to coordinate with local governments. They announced that they would make no more unilateral purchases.
7.GLEN LAKE IRRIGATION DISTRICT PRESERVED ITS EASEMENT FOR MOVEMENT OF ITS WATER SUPPLY FROM THE FOREST, SAVED ITSELF FROM RIGID PLAN FOR BULL TROUT, AND FORCED THE FOREST SERVICE TO REOPEN ITS TRAVEL MANAGEMENT PLAN AND ITS PLANNING CYCLE
Lincoln County, Montana has a board that is dead to the realities of life.
They refused to use coordination to help the irrigation district, so I was paid to help the District use the coordination process. In the process the Forest Service ended up giving in to the extension in perpetuity of the easement for the District’s water because of the need to be consistent with the District policy which we wrote that said that the easement was necessary to deliver water rights benefits; and opened its travel management plan and utilized a road by road designation prepared by the District’s coordination committee.
Then Fish and Wildlife came over a hundred miles to a coordination meeting to tell us they did not have to coordinate, but did “collaborate”, and then they did the same two more times before finally saying that we should writ our own bull trout plan and submit it for approval on the coordination consistency basis even though they did not have to coordinate.
8. “PERSUADED” IDAHO POWER COMPANY TO PLACE ITS POWER LINES FOR FEDERAL PROJECT ON PUBLIC LANDS RATHER THAN PRIVATE LANDS
BLM was the managing agency for the Wyoming to Boardman Oregon booster power line that Idaho Power was putting in. Idaho Power had issued a plan to put their lines on private ground rather than on the federally managed lands. It was far easier because the private ranch and farm lands are flatter, better maintained and easier for construction. Owyhee County required BLM to coordinate as to the line, and I explained to Idaho Power that it was subject to BLM’s ultimate decision, so they took part in the coordination meeting. The result was that in Owyhee County the lines went on public land and stayed on private land in the other counties in Idaho and Oregon. Four other Idaho counties then hired me to help them and Idaho Power put their lines on private lands throughout Idaho in all those counties that joined in the coordination demand.
9. HELPED WINKLEMAN SOIL CONSERVATION DISTRICT IN ARIZONA PRESERVE GRAZING RIGHTS WITHIN THE DISTRICT FOR RANCHERS WHEN FEDS WERE GOING TO STOP THE GRAZING TO PROTECT THE DESERT TORTOISE.
The District, as a unit of local government, demanded coordination and developed a local plan that called for a symbiotic relationship between ranchers and the tortoises. Utilizing the data quality act in the coordination process, Winkleman was able to show that the tortoises used the ground broken up by hooves to nest in. US Fish and Wildlife backed down from its restrictive demands.
10.For Modoc County in California prevented the Forest Service and BLM from restricting grazing to such an extent that it would have put ranchers out of business
11. For Owyhee County in Idaho prevented the BLM from placing a 45 per cent restriction on livestock grazing which would have put over 100 ranchers out of business in a county where ranching is the only economic producer
For the same county in Idaho prevented EPA from imposing minimum stream flows on intermittent streams, creeks and rivers which would have deprived cattle of water and farmers of irrigation
Service to withdraw its demands for protection of bull trout and allow the District to prepare its own plan for protection if needed, all for failure to coordinate
For Owyhee County against the Fish and wildlife Service to protect against any loss of irrigation water on the basis of listing the Bruneau hotsprings snail as endangered because did not coordinate
For Owyhee County worked with Fish and Wildlife to show that spotted frog was not endangered, so defeated the BLM which had not coordinated with the county over the frog’s protection
12.For Custer County in Idaho used coordination to force BLM and Forest Service to honor the RS 2477 nature of several roads that were on “close”plans but were kept open because county identified them as important to health and safety of citizens.
13.For Three Creek Good Road District in Owyhee County, Idaho, used coordination to force BLM to honor RS 2477 nature of a main road that the agency wanted to close. Road stayed open because of need to be consistent with district plan that called the road important to public health and safety.
A LETTER FROM A BIKERNET CLIMATE CALAMITY TEAM MEMBER
The coordination rule is very important, because it was mandated that the EPA must “coordinate” with any local government agencies, committees, etc. on any rule making that effected stakeholders, culture, environment and economy.
To date, I’m unaware of any city or municipality in California that was consulted with and asked to coordinate with the EPA, CARB or anyone on rules effecting the small trucking industry. That’s just a tip of the iceberg.
The EPA is running rough shod over the country and it appears to be toward the goal of fulfilling the U. N. Security Council’s goal of destroying independent nations and sovereignty in lieu of a One World Order.
This is in direct step with the communist theory of using global environmental crisis scares as a way of destroying free enterprise and replacing it with socialism and a central world government.
–Pan
Tony Pan Sanfelipo
Investigator
Hupy and Abraham, S.C.
1-800-800-5678
[page break]
A WRAP-UP REPORT FROM THE EDITOR OF BIKERNET TRIKES:
No one likes politics and those who don’t talk politics avoid talking religion as well. I have been following the Bikernet.com reports on global warming and various regulations regarding motorcycles. Here is a piece of my penny.
1. “The more corrupt the state, the more numerous the laws.” – Tacitus (born 55 AD, Senator in ancient Roman Empire)
2. How many American citizens drive a custom built motorcycle or hotrod car?
3. Almost 97% of the vehicles on the road all over the world are from major branded automotive companies such as Ford, Toyota, Volvo, Harley-Davidson, Suzuki, Yamaha, etc. They all meet strict regulations and Euro pollution norms. So why target vehicles as the whole source of global warming?
4. Volvo even paid a ridiculous amount of penalty fines for its pollution fiasco in USA. How many cattle farmers and animal meat farmers paid fines for pollution from methane and other bio-fuel caused in animal farming? Forget the fact that farmers use 90% of the water supply in every agricultural state while resident citizens who drive cars or bikes have to suffer water supply cuts and price hikes in water tariff because of the wastage of water in animal farms. Cowspiracy indeed.
5. So the Arctic ice is melting and penguins are drowning and polar bears are sleeping the eternal sleep of death (wait, there are more polar bears than ever before). Blame the average American citizen won’t you? Do you know who is the world’s biggest consumer of petrol, diesel and natural fuels? Yes, the various Military Industrial Complex of all nations of planet Earth. All nations including American Government spends a trillion plus dollars on fuel to run military trucks, fighter jets and test missiles – all for world peace. So taste those apples Mr. Patriot.
Why blame the average hardworking, family feeding, beer drinking citizen for the global climate changes?
–Ujjwal
Emperor Editor Bikernet Trikes
From DR Allen Lipkin comment regarding Chris Callen’s article The Climate Hustle–
I’m a Ph.D. Organic Chemist and am a foamy-mouthed liberal. Human climate warming has some serious scientific flaws.
Just sayin’…. The climate has been warming for 12,000 years, completely melting over a mile of ice that used to cover Canada. It’s still warming and will do so for another century or so.
The human contribution to global warming is minimal at best. Curious? Check out Malankovitch Cycles.
–from Rogue
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CLIMATE CALAMITY UPDATE: Climate Change Alert
THIS REPORT SHOULD CLEAR UP ANY MISUNDERSTANDINGS ABOUT CLIMATE CHANGE
The Arctic Ocean is warming up, icebergs are growing scarcer and in some places the seals are finding the water too hot according to a report to the Commerce Department yesterday from Consulate at Bergen, Norway.
Reports from fishermen, seal hunters and explorers all point to a radical change in climate conditions and hitherto unheard-of temperatures in the Arctic zone.
Exploration expeditions report that scarcely any ice has been met as far north as 81 degrees 29 minutes.
Soundings to a depth of 3,100 meters showed the gulf stream still very warm.
Great masses of ice have been replaced by moraines of earth and stones, the report continued, while at many points well known glaciers have entirely disappeared.
Very few seals and no white fish are found in the eastern Arctic, while vast shoals of herring and smelts which have never before ventured so far north, are being encountered in the old seal fishing grounds.
Within a few years it is predicted that due to the ice melt the sea will rise and make most coast cities uninhabitable.
* * ** * * * * *
I must apologize. I neglected to mention that this report was from November 2, 1922, as reported by the AP and published in The Washington Post 93 years ago.
This must have been caused by the Model T Ford’s emissions or possibly from horse and cattle flatulence.
–Tony Pan Sanfelipo
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