Published February 18th, 2021 by Budd-Falen Law Offices, L.L.C.
To quote Thomas Jefferson, “The government closest to the people serves the people best.” After spending time in D.C., I think that is truer than ever. However, the Trump regulations and policies that recognize Jefferson’s words are under attack. For example, under the Endangered Species Act (ESA), the listing of a species should be based only on science, but Congress mandated a different framework for critical habitat designations. Critical habitat – which equally governs private, state and federal land — requires consideration of economic and other relevant factors. According to the Trump regulations, those factors include local jobs, environmental factors such as catastrophic wildfire risk or invasive species, the local citizens and their custom and culture. The 2020 regulations recognized that State and locally elected governments can best articulate those factors. While there are many fine individuals working for the federal government in Washington D.C., they have little understanding of what it means to live in rural Wyoming, own a federal land grazing permit in New Mexico, or farm corn in Iowa.
This same sentiment was implemented in the changes to the National Environmental Policy Act (NEPA) regulations. Prior to 2020, the NEPA regulations had not been updated in forty years. NEPA applies to “all major federal actions” from repairing a federal bridge in Pennsylvania, to crossing “waters of the U.S.” in Florida or Oklahoma, to conducting a timber sale on federal land in Oregon. The 2020 regulations followed the Supreme Court’s admonition by (1) requiring that the effects on the human environment be caused by the proposed action, and (2) including employment as well as the custom and culture of the local citizens most impacted by the proposed federal action or authorization in the “human environment.” These changes did not elevate economic or environmental factors over each other, but required economic considerations and noted the ability of local governments to have a voice in federal decisions impacting their citizens.
Under the 2020 Great American Outdoors Act, part of the $900 million in annual appropriations from the Land and Water Conservation Fund (LWCF) is managed by the Interior Department for recreational activities, including acquisition of private land to federal land. Not all State and local governments see the acquisition of land away from the local tax base in the same light. Approximately 92 percent of all federally owned acres is in the 12 Western states. A county in northern Nevada that is made up of 95% federal land will have significantly different views on more federal land acquisition than one in Alabama with little federal land ownership. Thus, the Department of the Interior required the approval of State and local governments prior to any federal land purchases. This was an important tool to ensure local voices did not get overlooked.
Unfortunately, some people do not believe that the government closest to the people best represents their interests. The ESA and NEPA regulations have been challenged in federal court by those who want to shut out local views, data and knowledge related to decisions directly impacting the use of private and federal land. The Trump Administration’s position on State and local government approval prior to federal land acquisition with LWCF funds has now been eliminated by Biden’s Acting Secretary of the Interior through a signature on a Secretarial Order. That Order claims that allowing local governments to have a voice in land acquisition directly impacting their counties “undermined” the program. This Order shows rural communities and counties that the Biden administration believes in control from Washington D.C., rather than considering local concerns directly voiced by local representatives.
This is not a matter of Republican or Democrat, conservative or liberal. It is a question of whether State and local governments should be heard above the noise of well-funded groups that don’t care about local roads, schools and emergency services. I urge all State and local governments to learn about and advocate for their local elected officials being treated as the government officials they are, and not merely as members of the general public. In my view, local elected officials should have more sway on issues directly affecting them than someone from midtown New York who has never faced the realities of making a living from the land. Your constituents depend on your action.
Budd-Falen Law Offices, LLC 
 Karen Budd-Falen is an Attorney with Budd-Falen Law Offices, LLC with a primary focus on property rights, environmental, and natural resources law. Budd-Falen Law Offices, LLC, has attorneys licensed to practice law in Colorado, Idaho, Illinois, Montana, Nebraska, New Mexico, North Dakota, South Dakota, and Wyoming. This article should not be understood to state or imply that any lawyers of this law firm are certified as specialists in a particular field of law. Colorado does not certify lawyers as specialists in any field. The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer’s credentials and ability, and not rely upon advertisements or self-proclaimed expertise. This article is informational and is not legal advice. Use of this article or contact with this law firm does not create an attorney-client relationship.
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