‘Coordinating’ with the Federal Government : Assessing County Efforts to Control Decisionmaking on Public Lands

Resentment of the federal government's management of public lands runs deep in the arid West, where grazing, mining, and timber once predominated and remain important to rural communities. This resentment bubbled over in 2016 with the armed occupation of the Malheur National Wildlife Refuge in eastern Oregon and the ensuing acquittal of the occupants of criminal wrongdoing. Less violent manifestations of dissatisfaction in the rural West are playing out in the enactment of county land use ordinances that attempt to gain control over federal land management. These ordinances, encouraged by interest groups such as the American Legislative Exchange Council and the American Stewards of Liberty, raise serious questions about the relationship between federal and local government in federal land planning. In this article we examine an archetypical county ordinance from Baker County, Oregon and explain that most of its provisions are preempted by federal law and are therefore unenforceable. Although statutes like the Federal Land Policy and Management Act and the National Forest Management Act encourage cooperation between local governments and federal land planners, they do not authorize local land use control on public lands. Thirty years ago, in the leading decision of Granite Rock v. California Coastal Comm'n, the Supreme Court drew a sharp distinction between permissible state and local environmental regulation and impermissible land use planning, a distinction that lower courts have maintained over the years. Ordinances like Baker County's, which are proliferating throughout the rural West, fail to observe the distinction drawn by the Court, and consequently they include numerous local land use directives that are preempted by federal law. Although we believe that local involvement can help to improve federal land planning, we show how and why local ordinances attempting to prescribe land uses on federal public lands conflict with federal law, and thus mislead their supporters into believing that they are enforceable