Counties can assert authorities
by Jim Carbley
Big Piney native Karen Budd-Falen gave a rousing speech to those attending the "Untangling the Web" forum in Lander last weekend, hosted by the People for Wyoming and Wyoming People for the USA.
Budd-Falen explained that her first job in the Interior Department in Washington, D.C., had her working with Michael, a black man raised in the city, who had never been west of Cleveland and who had never seen a cow before. Ironically, Michael's job was to write grazing regulations which Karen's dad would then have to live with.
"I'm telling you folks, it doesn't work," Budd-Falen said of the way things work in the nation's capital. "There has got to be a way that we in the West can be involved in our own destiny."
It's been Budd-Falen's drive to find a way for residents in the West to gain the power and authority to write our own regulations, and she looks to the United States Constitution for guidance.
"The word constitution simply means foundation," Budd-Falen said. "If we don't have a solid foundation for this country, we're not going to have much of a country."
Noah Webster, the first author of a dictionary, wrote that first dictionary because he feared that courts would attempt to change the meaning of terms used in the constitution, Budd-Falen said.
Another thing she learned about the constitution is that each amendment in the Bill of Rights should not be read separately, but together.
"The key the founding fathers believed in ... was the ownership of private property," Budd-Falen said. "According to the founding fathers, that is the key to every other freedom we have in this country."
The term "constitutional rights" is an incorrect term, she said. "The Constitution does not give you rights. The Constitution is a document that stops the federal government from taking your God-given rights."
"Constitutionally guaranteed rights" is the proper term, Budd-Falen said. As for federal agencies and their actions, Budd-Falen pointed out that for every action, the agencies must point to a federal law expressly granting the agency the authority for the action. So when a person is told by a federal official to take a certain action, Budd-Falen advises that person to ask: " 'Show me what law you're implementing by making me do this.' And they have to do that."
One of the major laws providing for participation in federal land management planning is the National Environmental Policy Act. There are five major elements federal officials are required to consider, Budd-Falen said, and urged local governments to be involved in each element. The first element is the physical environment: "The courts have now said that local governments have as much participation in the design and protection of that physical environment as any federal agency," Budd-Falen said, noting a Catron County, N.M., case her law firm litigated about six years ago.
The federal government argued that county government had no standing for a lawsuit caring about the environment, Budd-Falen said, but the federal circuit court disagreed.
Her favorite line from the court decision stated, "Just because the Secretary of the Interior says it, does not mean that it is so."
The second NEPA element is economics, she said, which includes consideration of the local tax base, an item local governments have expertise.
"Tourism is not going to save the State of Wyoming and if it does, it's only going to be for three months out of the year," she said, so local industry, whether livestock grazing, timber or minerals, need to be granted consideration.
Custom and culture is the third element, and one local governments need to increasingly focus on.
"The custom and culture are you," Budd-Falen said. "It's the citizens who live here."
This includes what the citizens in the local area do for a living; what they do for recreation; how they choose to raise their families; and what sort of a community they live in.
It cannot be defined by the federal government, Budd-Falen said, and should be defined by local governments.
The fourth element is a review of alternatives, which has increasingly seen emphasis from local governments. The remaining element is mitigation, which is increasingly subject to litigation.
Budd-Falen also pointed to opportunities for county governments to serve as either joint lead agency or cooperating agency with the federal government. She noted by doing so, the county has the authority to force hearings to be held at the local level, and counties can also take a lead in examining research questions.
"The question asked often dictates the answer that you're going to get," Budd-Falen said.
Budd-Falen had a few recommendations for citizens and county officials to become more involved, including the formation of a citizen committee to take the lead in taking action to influence federal decision-making.
Budd-Falen also suggested counties write a petition for a redress of grievances, (words taken from the U.S. Constitution which simply mean to ask them to do something). For example, it could say, "We the citizens of __ County, Wyoming petition our county commissioners to adopt a land use plan to become involved in federal agency decisions and to stand up for the citizens of our county."
"What it does is give the county commissioners a force of authority to go to the federal agencies and say, 'Look, we have the citizens behind us and we are going to enforce our rights,' " Budd-Falen explained.
Counties should write local land use plans and then put federal agencies on notice that the plan exists and the federal government is expected to comply with that plan. Counties should join with other local governments and coalitions to affect change, and get involved in attending meetings and understanding what their rights are.
Budd-Falen said counties should also do an economic study to understand their local economies. She said while it's nice to see ranchers attending last week's session, the local car dealer and other local businesses should be there as well, since their livelihood is dependent on the same issues.
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