Tuesday, March 31, 2020

Local control of federal public lands during the COVID-19 pandemic

During the COVID-19 public health crisis, governments across the country – and the world – are trying to strike the appropriate balance between the actions needed to limit the spread of the disease, such as stay-at-home orders and mandatory closures, and the costs imposed by those very same actions, ranging from social to economic to physiological.

One specific action that many federal, state, and local governments in the United States are taking is to limit or entirely close off access to public open spaces, such as local playgrounds, state parks, and national forests and parks. The loss of access to public outdoor spaces is yet another disruption posed by the pandemic, and a challenging one in light of the fact that exercise and exposure to nature are important parts of maintaining both physical and mental health. However, such closures are being seen as increasingly necessary to ensure compliance with social distancing and travel limitations, and to reduce pressure on first responders and health systems in local communities.

When a decision to limit or close access is made by the governmental entity with jurisdiction over a particular public space – such as a city with a municipal park, or a state with a state park, or the federal government with a national park, national forest, or other federally managed public lands – and the closure applies broadly to all members of public, the legal authority for those decisions is generally clear-cut.

For example, the National Park Service, Forest Service and many state park agencies have issued numerous closure orders of national forests, national parks, and state parks over the past few weeks to assist in efforts to limit crowds, protect employees, and reduce possible pressures on local health facility resources. In the case of federal public lands, such as national parks and national forests, these decisions have often been made in cooperation with local governments, but the closure decisions themselves are ultimately the responsibility of the federal agency with jurisdiction over the particular public lands, who have the legal authority under federal law to issue such orders.

But some federal public lands – particularly BLM lands and trails within many national forests – remain open to the public. In part, this is because of the physical attributes of these types of public lands: unlike local, state, or national parks, national forests and BLM lands typically have many points of entry via multiple trailheads, waterways, and unfenced boundaries. Furthermore, even under the best of circumstances, the federal agencies that manage these public lands have limited personnel to monitor the vast expanses under their jurisdiction.

In light of these limitations, some local governments are attempting control public access to federal public lands within their boundaries. In particular, a number of local governments have taken actions that prohibit – directly or indirectly – non-local residents from accessing federal public lands, while continuing to allow local residents access. Do local governments have the legal authority to do this?

The answer depends in large part on the precise method a local government utilizes to deter non-local residents from accessing federal public lands within their boundaries, with some methods on firmer legal footing than others. (The question of legal authority is separate question from whether local governments should be able to prohibit non-local residents from accessing federal public lands during the COVID-19 pandemic. This post focuses on the former question of legal authority; the latter normative question raises complicated policy concerns and public health and safety questions beyond the scope of this analysis.)

Local governments are on the firmest legal footing when they do not assert direct control over who can access federal public lands, but rather when they take steps that indirectly limit the ability of non-locals to access those lands. For example, a number of local governments have issued orders like that issued by Moab County, Utah, prohibiting new bookings at all local hotels, bed and breakfasts, private campgrounds, and short-term rental housing such as Airbnb, with limited exceptions for emergency personnel and self-isolating individuals. By eliminating most short-term accommodation options, these local governments hope to reduce the likelihood non-residents will travel to their jurisdiction. As these types of actions are typically within the scope of legal authority that local governments with home rule have under emergency powers pursuant to state law, and the actions do not assert direct control over federal public lands, they would appear to be legally valid methods to (indirectly) limit non-residents' access to federal public lands within their jurisdiction.

However, short-term accommodation closures may not effectively deter non-residents who want to access federal public lands and who do not need accommodation (either because those individuals can make day trips and drive back to their own residence at night or because they could camp within the federal public lands, particularly if dispersed camping is permitted). Therefore, some local governments seeking to limit access by non-residents have exercised more robust assertions of local control over access to federal public lands.

For example, San Juan County (Colorado) has issued a notice that law enforcement will ticket or tow vehicles with out-of-county registrations that are parked on roads within the county that are used to access trailheads within national forests or on BLM lands. Although ticketing non-local vehicles versus local vehicles might implicate constitutional concerns about equal protection or right to travel, in light of the emergency powers the local government is acting pursuant to, the county's actions would arguably satisfy the applicable standard of review, whether strict scrutiny or a lesser standard. And as long as the local government has been delegated home rule authority (or another specific source of authority from their states to control vehicular activity and parking along county roads), then this type of local action would appear to be a legally permissible way for counties to indirectly control access to federal public lands and limit non-local use of those lands.

Finally, some local governments are going beyond the type of indirect actions described above and appear to be asserting direct local control over who is permitted on federal public lands within their boundaries. These scenarios raise the most significant questions about the source of local governments' legal authority. For example, Gunnison County (Colorado) issued a notice indicating that non-residents are not permitted on public lands within the county: the county's social media feed refers to the federal public lands as "Gunnison County public lands," and states that they are open to "residents of Gunnison County only." The authority for this proclamation appears to be a county public health order issued pursuant to the county's emergency powers, which requires all non-residents leave the county and return to their primary residences, as well as numerous other mandates to reduce the risk of transmission of the virus.

The home rule authority of local governments is at its most expansive when exercising emergency powers; however, even at its most expansive, that authority does not allow a local government to directly control activities occurring in another jurisdiction, whether it is a neighboring county, state, or federal public lands. And while there are existing models in public land law of collaborative efforts between local governments and the federal government with regard to the management of federal public lands, the actions undertaken here are occurring in the absence of any such authorized collaborative land management. While Gunnison County may be able to take indirect actions to deter non-residents from accessing federal public lands within its boundaries, as a matter of legal authority, the federal government, not states or local governments, has authority over federal public lands: as the Supreme Court has recognized repeatedly, Congress's power under the Property Clause to manage federal public lands is "without limitation." (As an aside, whether its current actions are legally valid or not, Gunnison County may be drawing on its experience during the Spanish flu pandemic in 1918, when it sealed itself off from the outside world and successfully averted an outbreak).

In thinking about the legal authority of local governments to take actions to prevent non-local residents from accessing federal public lands, it is also worth considering how the types of "local control" efforts described above compare to the more well-known attempts at local control of federal public lands, such as the county supremacy movement and the Sagebrush Rebellion. Unlike those efforts to exert local control over federal public lands, the local government actions described here do not appear to stem from antipathy to the federal government or assertions of states' rights, but rather from an understandable concern about limiting the number of individuals who are located in the municipality who might create demands on local health care systems and first responders, or whose presence at a local gas station or grocery store on their way to the federal public lands may increase the risk of virus transmission.

It is also worth recognizing that the types of "local control" efforts associated with the county supremacy movement typically involve local attempts to permit activities on federal public lands – such as off-road vehicle access, more permissive grazing rights, or oil and gas exploration – that would benefit the local population, but which would not necessarily benefit the broader public in whose interests federal public lands are supposed to be managed. In contrast, in the local control scenarios associated with the COVID-19 crisis, assertions of local control to limit access to federal public lands arguably serve to benefit both the local community and the broader public interest (at least as measured by the public interest in reducing opportunities for virus transmission).

Yet when local governments attempt to control access federal public lands, and in particular, when they purport to have the authority to allow their own residents to continue to access federal public lands while prohibiting all other members of the public from doing so, it raises questions not only about legal authority, but also reflects long-standing tensions in public land law about what "public lands" mean and who qualifies as the "public" in this context. As scholars Michael Blumm and James Fraser have noted: "The 'public' in public land law has generally implicitly favored the local as opposed to the regional or national publics."

It is also worth recognizing that the local versus non-local tension is not limited to questions about access to federal public lands: we can see it playing out in a variety of contexts during the COVID-19 pandemic, with vacation towns telling second homeowners to stay away, island communities attempting to bar visitors from the mainland, and entire states enacting travel restrictions on anyone from out-of-state. Local control over access to federal public lands presents unique legal questions at the intersection of local government law and public land law, but it is only one of many contexts where longstanding tensions between "us" and "them" are being exposed as a result of the pandemic.

As noted at the outset, this analysis has focused on the question of legal authority of local governments to control access to federal public lands within their boundaries, not on the normative question of whether local governments should be able to prohibit access by non-local residents. Yet it is difficult to completely bifurcate the two questions. If you lived in Gunnison County or Bishop, California, or Moab, Utah, it is understandable that you might want to be able to continue to access the federal public lands that surround you, and also want legal measures put into effect to ensure non-local visitors to those federal public lands stay away.

On the other hand, the risks associated with any public access in any public spaces right now, including federal public lands, might make the question of local versus non-local access moot. As a member of the San Miguel County (Colorado) Search and Rescue team noted after the emergency rescue of a local backcountry snowboarder within a national forest in that county: "We had more than 30 people involved in that rescue, 30 people who would otherwise not be together at all. . . . What happens in two weeks when people need all those beds [occupied by accident victims, like the snowboarder] for people dying from Covid-19? . . . What happens when that person gets Covid from being in the hospital? This is an unbelievably unprecedented time. We have to think more responsibly.”

- Kellen Zale

March 31, 2020 | Permalink | Comments (2)

Monday, March 9, 2020

The Complicated Environmental Implications of the Supreme Court’s Cert Grant in Fish and Wildlife Service v. Sierra Club

Last week, the United States Supreme Court granted review in Fish and Wildlife Service v. Sierra Club.  You might think, just based on the names of the participating parties, that a win for the Sierra Club will be a win for the environment.  I’m not so sure.

The case involves the Endangered Species Act, the Freedom of Information Act, and an exchange of documents between two federal agencies.  EPA was preparing a new regulation on cooling water intakes, and, as required by the Endangered Species Act, it initiated consultation with the US Fish and Wildlife Service.  Formal consultations culminate in biological opinions, which explain whether a federal agency action will jeopardize the continued existence of listed species or adversely modify their critical habitat.  In this consultation process, FWS initially prepared final-looking biological opinions that found jeopardy.  But it described the jeopardy opinions as drafts when it emailed them to EPA, and it invited further discussion.  EPA instead decided to change its proposed rule, and a reinitiated consultation on the amended proposal produced a no-jeopardy opinion.

The question now before the Court is whether the Sierra Club could use FOIA to obtain those jeopardy opinions (several other documents are also at issue, but I think the jeopardy opinions are the most important).  The Sierra Club filed a FOIA request, but the Fish and Wildlife Service declined to release the opinions.  It cited FOIA exemption 5, which protects from disclosure intra- or interagency communications that are pre-decisional and deliberative.  The Sierra Club filed suit, asking the court to compel release of the documents, and first the district court and then the Ninth Circuit ruled in the Sierra Club’s favor (on the biological opinions but not on every requested document).  According to the Ninth Circuit majority, the jeopardy opinions, though described as drafts, were finalized within the Fish and Wildlife Service, and therefore represented decisional rather than pre-decisional documents.  In dissent, Judge Wallace disagreed.  He would have treated the biological opinions as pre-decisional drafts.

The case presents some interesting legal questions, but those are only a peripheral focus of this post.  The question I’ll consider, instead, is whether a Sierra Club loss (which I think is most likely what’s coming) would be good or bad for the environment.

It’s easy to understand why a Sierra Club loss might be bad for the environment—and, therefore, why the Sierra Club wanted to bring this case.  The Sierra Club suspects the non-released documents will help show what FWS biologists really thought about the proposed rule, and that what those biologists really thought might be at odds with the text of the final biological opinions.  That information could be important for public transparency.  It also could help the Sierra Club prevail in a court case against the final rule.  That’s because EPA and the Fish and Wildlife Service will both argue that their positions arose out of agency expertise, and therefore deserve deference, and deference is harder for a government agency to get when the agency turns out to have ignored or silenced its own scientists.  Under the current administration, which seems particularly inclined to ignore or silence experts, this kind of documentation could be especially revealing (though all the events at issue in this particular case occurred during the Obama Administration).  And the current administration is hardly the first to play the game of silencing experts while simultaneously asking courts to defer to expertise; nor will it be the last.  More disclosure would help combat such behavior.

But there’s a different way of viewing the dispute, and it puts the United States’ position in a more positive light—even if you’re a committed environmentalist.  Consider a simplified version of the events leading up to this case: EPA proposed a rule; FWS sent EPA a near-final jeopardy opinion; rather than fighting that opinion, EPA changed its rule; and FWS then sent a no-jeopardy opinion.  That sounds like the way interagency negotiations ought to work: one agency says, “no, seriously, we’re really worried about the legality of your rule,” and the other agency says, “okay, we’ll try to fix it in a way that addresses your concerns,” and the first agency says, “we can live with that fix.”

While I don’t think anyone has data on how often this kind of thing happens, I suspect, based on snippets of anecdotal evidence, that it’s more common than most of us realize.  Several years ago, while researching a paper on consultation processes, I found myself talking to a National Marine Fisheries Service biologist about the non-existence of jeopardy and adverse modification opinions during the first year of the Obama Administration.  “Well,” he said (and I’m paraphrasing from old notes), “I’ve got five jeopardy/adverse modification opinions on my desk right now, ready to go out to other agencies.”  He told me he didn’t expect any of the opinions to be finalized, but sending them was an effective way of raising the ante in interagency negotiations and getting other agencies to adjust projects in ways that made them more protective of species. 

NMFS or FWS might be less willing to deploy that option if the agencies expected their shots across the bow to be discoverable under FOIA (or perhaps not; in the past, the agencies have often included draft jeopardy opinions in administrative records, which suggests sometimes they aren’t so worried about disclosure).  And if that’s true, then making a draft jeopardy opinion discoverable might actually limit the use of a tool agencies sometimes deploy to protect species.

So how, you might wonder, do these scenarios balance out?  Is it better for the environment, and for species, to promote transparency and to give environmental groups more leverage in litigation, or is it better to (maybe) protect a tool that sometimes gives agencies leverage in negotiations?  Probably the best answer is that it’s just really hard to know.   

If you do have an intuition, it may turn on whether you believe the primary engine of environmental protection comes from within the agencies or from external pressure and oversight.  And if you are inclined toward the latter view, it may be worth pausing to consider how rare environmental challenges to biological opinions, and to agency decisions more generally, really are.  Of the thousands of biological opinions issued every year, only a few handfuls, at most, draw litigation.  The threat of litigation is more far-reaching, and litigation also tends to focus on particularly high-impact consultations, but still, the vast majority of consultations occur without any realistic likelihood of judicial review.  That suggests an outcome favoring greater disclosure may matter in a fairly small number of cases, while an outcome favoring greater leverage for the Fish and Wildlife Service and the National Marine Fisheries Service might matter more often.

- Dave Owen

March 9, 2020 | Permalink | Comments (0)