Throughout the western states there is resistance to the ever expanding bureaucratic assault on private property rights and interest.

 That resistance has taken many forms, most of them centered on the County organization of government. Some of the forms of resistance express militancy, some express a supremacy of county government, some claim ownership of the federal lands in the name of the States rather than the federal government, and some are based upon the insistence that the federal management agencies coordinate with and involve local government in the planning of use for the federal lands.

The forms of resistance are very different. But, the federal agencies, starting with the Department of Justice, have attempted to lump all forms together in one package. Then they cast a glow of militance and obstinence on the package. They have done this in an attempt to flavor public opinion against the County planning movement.

When the federal agencies refer to the western resistance they utilize a term such as the "County Supremacy" movement, or "Sagebrush Rebellion II" and then link the term with militia groups. Their effort has been largely successful because the media prints and broadcasts what is provided by the federal agencies.

So, what are the facts about the so-called "County movement" in the west?

Most everyone is familiar with the Catron County experience. Catron County, New Mexico, initiated a County Planning process through enactment of ordinances designating the County as the prime planner for the public lands lying within the County. The ordinances adopted many of the provisions of the Civil Rights Act as County law. These ordinances were relied upon by the county to confront the federal bureaucrats and force them to consider the County’s importance in determining the future use of the lands within the County. It is from these ordinances that the media has built the "County Supremacy" phrase which is now often applied to all county plans in the west.

The Catron County process worked for Catron County. After much posturing and threatening by the bureaucrats, the Forest Service signed a Memorandum of Understanding with the County calling for coordination of planning of use of the federal lands.

In some areas, such as northern Idaho, the Catron County ordinances structure was tried unsuccessfully. A northern Idaho county enacted the ordinances in the same form as that adopted in Catron County. The ordinances were challenged in court, a stated district judge ruled them unconstitutional under both the Idaho and United States Constitutions, and the Idaho Supreme Court sustained that ruling. The ordinances were predictably ill fated in Idaho because of the particular structure of county government under Idaho’s Constitution, statutes, and prior case decisions regarding the limited areas in which counties can legislate in the state.

The media covered the rebuff to the ordinances as a severe blow to county planning and to western resistance to the federal "war on the west." An extremist non-use organization circulated a letter throughout the northwestern states and counties pointing out that the decisions made it clear that no county had standing to insist on participation in federal planning for the federal lands. The media was wrong. The extremist organization’s letter was wrong. The Idaho decision simply meant that the Catron County, New Mexico ordinances would not "fly" in Idaho. The decision had no impact on other forms of county planning which were already underway in other counties in Idaho.

In Nye County, Nevada, the County launched the effort to secure a declaration that the United States Government does not own the "public lands" in Nye County, or in Nevada. Much publicized was the incident in which the County commissioner mounted a "cat" and was photographed moving past federal officials on a right-of-way.

Nye County successfully pursued adoption of a resolution by Nevada’s other counties declaring that the United States was not the owner of the "public lands." Finally, the United States brought suit against the County, and in summary judgment decisions the United States District court has ruled against the County’s ownership concept.

A national magazine carried a photograph of the Nye County Commissioner on its cover, accompanied by an article discussing the western resistance to federal bureaucrats. That article did its best to portray the entire county movement throughout the west in militant terms.

When the Court ruled against Nye County’s position, the media carried the story as though the decision struck a mortal blow to the entire "Wise Use," "County Supremacy," "Sagebrush Rebellion II," "County Planning" movement. Again, the media was either mislead or was intentionally or negligently wrong. The Nye county decision simply meant that a United States District Judge in Nevada ruled against Nye County’s contention that the United States does not negatively impact county planning as it exists in many counties throughout the west.

For example, it had no impact on the county planning process in Lemhi County, Idaho, Owyhee County, Idaho or Modoc County, California. Those counties have followed a completely different planning approach to the problems of defending private property rights and interests. They have based their planning process on the mandate of federal statutes that the federal management agencies coordinate their activities with counties involved in the land use planning process. Their county processes continue to thrive in spite of certain set-backs to other county processes described.

Statutory Authority

The governing boards of Owyhee and Modoc Counties appointed Land Use Committees to serve as the representatives of the boards in the planning process. The plans developed by the committees and adopted by the governing boards provide a positive guide by which the County can insist upon coordination by the federal agencies of planning activities and management decisions. The county plans so adopted are designed to facilitate continued and revitalized multiple use of the federally managed lands within the counties.

The coordination of planning efforts sought by these counties is mandated by federal statutes which govern the actions of the management agencies. For example, the Federal Land Policy and Management Act (FLPMA) governs planning activities of the Bureau of Land Management (BLM). That Act, at 43 United States Code Section 1701(a)(2), declares it to be the national policy that:

"the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use projected through a land use planning process coordinated with other federal and state planning efforts." (Emphasis by capitalization added).

Section 1712 c-9 of 43 United States Code refers to the coordinate status of a county which is engaging in the land use planning process and requires that the Secretary of Interior must "coordinate the land use inventory, planning and management activities … with the land use planning and management programs of other federal departments and agencies and of the State and Local Governments within which the lands are located" (emphasis added). It is this provision which gives statutory preference to those counties which are engaging in a land use planning process – a preference over members of the general public, special interest and extremist groups, and even counties which do not engage in a land use planning process.

Section 1712 also provides that the Secretary of the Interior must "assist in resolving, to the extent practical, inconsistencies between federal and non-federal plans." This provision also gives preference to those counties engaging in the land use planning process.

Section 1712 further provides that the Secretary of the Interior must "provide for meaningful public involvement of state and local officials … in the development of land use programs, land use regulations, and land use decisions for public lands" (emphasis added).

In view of the requirement that the Secretary "coordinate" land use inventory, planning and management activities with local government, and in view of the requirement that the involvement of local government be "meaningful," these counties have taken the position that they should be involved throughout the planning and management cycle, not just at the end when a draft plan or decision is issued.

Section 1712 also provides that the Secretary must assure that the BLM’s plans be "consistent with State and local plans" to the maximum extent possible under federal law and the purposes expressed in FLPMA.

The National Environmental Policy Act (NEPA) also requires that all federal management agencies consider the impacts of their actions on the environment and on the preservation of the culture, heritage and custom of local government. See 16 United States Code, Section 4331(a)(4). The counties involved in the land use planning process include in their plans considerations of preserving the culture and custom of the people of the counties, and expect the federal agencies to consider that culture and custom in their planning cycles.

The Endangered Species Act (ESA) also provides a federal statutory base upon which the counties expect coordination from federal land agencies. The act states the express national policy to be that:

"It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species." 16 United States Code Section 1531,c,(2).

At this section, the ESA also provides that the Secretary shall make a decision as to the status of a species only "after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices …."

The Owyhee County Plan

Utilizing the foregoing statutory provisions, as well as BLM regulations calling for coordination of planning and similar statutory and regulatory provisions regarding the Forest Lands, Owyhee County, in Idaho adopted an Interim Comprehensive Land Use and Management Plan in July, 1993. After much effort, the County’s Land Use Committee and Board of Commissioners, finally were able to press home to the BLM resource area offices that the statutes required coordination.

As a result the County has participated in the development of alternatives for the Resource Management Plan for the Owyhee Resource Area. Even though the BLM has chosen an alternative inconsistent with that developed by the local planning bodies, the County is in a position to challenge that BLM plan administratively because of the inconsistencies.

The County also participated in the development of a Plan for the Birds of Prey Area in Owyhee County’s Bruneau Resource Area. Several of the county’s concerns were taken seriously by the BLM and changes were made in the BLM’s proposed plan as suggested by the County.

The County recently advised the BLM that it was the "interested public" with regard to several grazing allotments which appear to be targeted for severe and unnecessary restrictions. The County filed a protest as to one of the allotments. The protest resulted in a public meeting, and afterward in a compromise which allowed the permittee to successfully complete the grazing season.

The county has initiated working meetings with all parties involved in the on-going saga of the Bruneau Hotspringsnail, and thus far there has been no listing of the snail. As a result of these working meetings, the United States Fish and Wildlife Service (USFWS) recently came directly to the Board of Commissioners and the Land Use Committee to ask for assistance in inventorying habitat for the spotted frog. A petition had been filed with the Service for protection of the frog. As a result of the coordinated effort between the Service and the County, several frog breeding sites were located on private property which makes it far less likely that a listing will be required. The coordinated effort resulted in finding more sites within days than a BLM funded study had found in more than a year’s study of federal lands.

The Modoc County Plan

Modoc County, California has followed the same coordinated route of planning as that followed in Owyhee County. Modoc County has met with even greater success with the BLM than has Owyhee County. The BLM and the Forest Service have coordinated planning efforts with the Modoc Land Use Committee, and seek input from that Committee throughout the planning cycle.

Modoc County has executed a Memorandum of Understanding with the California Department of Fish and Game regarding mitigation decisions within the County. The County is also involved in the national stewardship program and recently participated, with the BLM, in the cooperative workshop addressing the "Future of the Resource Dependent Economy."

Recently the county effort in Modoc County was tested. An adequately functioning grazing plan developed by the Forest Service with permittees was threatened by a decision by one employee of the Fish and Wildlife Service from the Sacramento office. Modoc County’s planners and county attorney swiftly notified the United States of its intent to sue because of the government’s failure to coordinate with the County. The Department of Justice became involved, arranged a meeting on the ground with all the appropriate agencies. The result was the grazing plan is still in effect and the Klamath Falls, Oregon office of Fish and Wildlife Service will handle the issues with Modoc County from here on. The County’s successful position was made possible because of its status as a land use planning county, relying on the federal statues and case decisions which provide lawful standing in court to such counties.

Planning counties like Owyhee and Modoc rely upon federal law for their coordinate status. They fully insist that the federal management agencies follow the federal statutes. They do not base their plans upon ordinances providing a priority position to the counties; they do not base their plans upon a theory of ownership of the "public lands"; they do not propose military type resistance to the bureaucrats; they do not base their plans upon a concept that only grazing should occur on the federal lands. Rather, they base their plans upon federal statutory and regulatory mandates of coordination; they base their plans on the county’s interest in maintaining and fostering multiple uses of the federal lands; and they stand ready to defend their plans and their coordinate status in a court of law if the federal management agencies act arbitrarily and capriciously.

Participating in the Planning Process

Can you participate in county planning efforts like those in Modoc and Owyhee counties? Of course. First, if you know your county has a planning effort underway, contact a Committee member and find out when the next meeting is scheduled. Then go, and attend regularly so that you can keep up with the issues which are fast moving.

If you do not know the status of your county, call the Board of Commissioners or Supervisors and ask whether there is a land us planning process in place. If so, take part.

If your county does not have a planning process, but a neighboring county does, attend the meetings there. You can still keep up with the issues, and you can be of immense assistance in preparing comments for the Congress and federal agencies regarding the issues. Remember, those few members of the planning committees who work diligently often feel lonely because of their small number. Your presence and assistance can be a big boost.

There are many of us who will help steer you to a group or give you advice as to how to form a group of your neighbors in order to better participate in development of the concepts which we must continue to push in support of private property.

All of us who believe in the Constitutional principles drafted in Philadelphia during that hot summer in 1787 must continue to resist the bureaucrat-extremist assault on those principles.

Fred Kelly Grant is a consultant to the Owhyee County Land Use Planning Committee and to the Board of County Commissioners. He is the legal expert who guided the Owyhee County Land Use Plan used as a model for counties across the west. Grant is a former Assistant State Attorney of Baltimore, Maryland and formerly chief of the Organized Crime Unit.