Attorney urges counties to assert their rights in public land decisions

By MIKE FERGUSON

Baker City Herald

January 14, 2009

Nampa-based attorney Fred Kelly Grant used to prosecute organized crime in Baltimore before he became president of Stewards of the Range, a group that helps local governments coordinate land-use actions taken by federal agencies.

The only difference between the Syndicate and the federal government, Grant quipped, is that “the Syndicate is better organized and more efficient.”

Grant, 72, spoke Tuesday in Baker City in front of about 55 people on coordination, a strategy he says is a more effective way for local communities to affect federal land-use decisions on public lands.

A community writes a coordination plan, which Grant said the federal agency must be consistent with as it takes its actions. It gives local government a seat at the table while policy, such as the Wallowa-Whitman’s pending Travel Management Plan, is being made.

Currently, Baker County enjoys cooperating status in the Travel Management Plan process. A former timber executive, Bob Messinger of Summerville, represents Baker and four other counties as a team of Forest Service employees is writing an environmental impact statement for proposed closure of all or part of about 4,100 miles of roads within Oregon’s largest national forest.

“I am not opposed to cooperating with agencies, but not cooperation alone,” Grant said.     

Language about coordination is found in many laws important to natural resource producers, he said, including the Clean Water Act, Clean Air Act and National Environmental Policy Act.

“Woodcutting, mining, berry-picking — every multiple use is identified in statutes which the Forest Service is mandated to implement,” he said.

But coordination is a tool reserved for local governments, Grant said, producer groups and environmental groups aren’t allowed to use it.

Grant contends the water crisis in the Klamath Basin could have been averted if the adjoining counties — some already had coordination plans in place — had used the process.

“I spoke to (then Interior secretary) Gale Norton before she left office,” Grant said.

“I asked her what she would have done if the counties called on her to coordinate. She said, ‘I would have had to go to the table and make our actions consistent with their policy.’ That is a tragic lack of understanding of the authority those counties had.”

Had the coordination strategy been available sooner, “we’d still have timber sales on the national forests and no huge decrease in grazing” on Western lands, he said.

Grant peppered his talk with anecdotal information about how communities have used coordination to assert themselves in federal matters.

One of the most unusual examples is the Bruno Hot Springs snail, which Grant said was placed on the endangered species list solely because a vacationing university professor saw fewer of the tiny creatures a year after he first observed them. The listing had repercussions for both farmers, who depended on irrigation water, and ranchers, whose cattle were excluded from the snail’s habitat.

In the end, the U.S. Department of Fish and Wildlife — with help from the affected county — devised a way to restore the aquifer, “which was the problem in the first place,” Grant said.

Ken Anderson, ranger for the Whitman Unit of the Wallowa-Whitman National Forest, told the group that while he hasn’t worked “with a county that exerted the coordination standards you are talking about, I do have substantial experience working with counties doing what you are talking about.”

It’s a system that can work — so long as communities are willing to work at it, Anderson said.

“There’s no question that it’s critical that locals know what they want,” he said. “When they don’t know, they can’t help the agency. We have an audience we are dealing with that is much larger than the local audience.

“There is an absolute important value to you working in collaboration as to what you want and need with the public lands in your community.

“It is also critical as you coordinate with the agency that you go in with a problem-solving approach, because what you visualize may not be possible on public lands”

After Grant finished his presentation, commissioners from other Eastern Oregon counties — Mike Hayward from Wallowa County, Mark Davidson of Union County and Boyd Britton of Grant County — together with Colby Marshall, the natural resources adviser for Rep. Greg Walden, R-Ore., weighed in on what they’d heard.

Hayward, for 12 years a county commissioner, said that while Wallowa County has enjoyed “modest success” using coordination and “it’s easy to see how coordination works on an action an agency is proposing, what is hamstringing our area is inaction by federal agencies, like not putting up timber sales. How do we use coordination to move that ball forward?”

Grant said the agency must prove it took no action because there’s a law that prevents the agency from taking an action. “If you find a little issue you can require them to take action on,” he said, “it becomes easier for a bigger action.”

An example, he said, is juniper control: a 40-acre start-up project could mushroom to something 10 times that size, he said.

When Baker County Commissioner Carl Stiff asked, “What if they say they have no money?”

“The statute says what’s practicable, not what’s practical,” Grant replied. “It doesn’t matter whether they say they have the money. They have it somewhere. Every agency has money it can call on to facilitate compliance with the law.”

In response to a question from Nancy Peyron of Baker County, Grant said Owyhee County in Idaho, his home, will be using its coordinating status to deal with Idaho Power Co.’s proposed 500-kilovolt line, which, if approved, would pass through both Owyhee and Baker counties.

“Our concern is that they aren’t following the original corridor as it was originally set out,” Grant replied. “If they had done that, they wouldn’t be disturbing private property.

“If the counties along the corridor require coordination, it would present (Idaho Power) with such a problem that eventually Idaho Power, which doesn’t like confrontations, will do it the easy way.

“People talk about getting together as a region to coordinate, but no, each county has to coordinate (separately). Don’t wait too long,” he advised, “on the Idaho Power corridor.”

Marshall, Walden’s aide, said he liked what he heard during Tuesday’s meeting.

“For the communities in the (2nd Congressional) District, where there are community groups established that are working with local government, it gives local government credibility moving forward,” he said. “They can say, ‘It’s not just my idea. This is the product of debate and the ideas that have emerged.’ ”