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HomeMy WebLinkAbout20113030.tiff RECORD OF PROCEEDINGS MINUTES BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO NOVEMBER 21, 2011 The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity with the laws of the State of Colorado at the regular place of meeting in the Weld County Administration Building, Greeley, Colorado, November 21, 2011, at the hour of 9:00 a.m. ROLL CALL: The meeting was called to order by the Chair and on roll call the following members were present, constituting a quorum of the members thereof: Commissioner Barbara Kirkmeyer, Chair Commissioner Sean P. Conway, Pro-Tem Commissioner William F. Garcia Commissioner David E. Long Commissioner Douglas Rademacher Also present: County Attorney, Bruce T. Barker Acting Clerk to the Board, Esther Gesick Director of Finance and Administration, Monica Mika MINUTES: Commissioner Long moved to approve the minutes of the Board of County Commissioners meeting of November 16, 2011, as printed. Commissioner Conway seconded the motion, and it carried unanimously. CERTIFICATION OF HEARINGS: Commissioner Conway moved to approve the Certification of Hearings conducted on November 16, 2011, as follows: 1) USR11-0013 - Steve Sharp, dba Steve Sharp Transportation. Commissioner Garcia seconded the motion, which carried unanimously. AMENDMENTS TO AGENDA: There were no amendments to the agenda. PUBLIC INPUT: Doug Meyer, County resident, expressed concern with discussions regarding abandonment of the well for the Town of New Raymer. He explained there are new rules and regulations which go into effect December, 2011, which require an augmentation plan and associated fees for pumping over a certain quantity. He stated small farms have already been targeted which use wells for domestic use and to irrigate crops. He also noted certain military and school uses have not been addressed; however, if the Town does not have a water source, the school will soon shut down as well. He stated the Coordination process was provided to the citizens, marked Exhibit A, and members of the American Stewards of Liberty are willing to volunteer their time to assist with the process. CONSENT AGENDA: Commissioner Rademacher moved to approve the Consent Agenda as printed. Commissioner Conway seconded the motion, and it carried unanimously. Minutes, November 21, 2011 2011-3030 Page 1 BC0016 NEW BUSINESS: CONSIDER DECLARING CERTAIN EQUIPMENT AS SURPLUS PROPERTY, AND AUTHORIZE DONATION OF SAME TO NON-PROFIT AND/OR FAITH-BASED ORGANIZATIONS WITHIN WELD COUNTY: Judy Griego, Director of Department of Human Services, stated the submitted list is surplus equipment and furniture left over from the Building Healthy Marriages Program, which staff desires to donate to related non-profit or faith-based organizations. Responding to Commissioner Conway, Ms. Griego stated the organizations associated with the Building Healthy Marriages Program approached the Department and asked for any unused items, and she confirmed the surplus list was not advertised. Commissioner Rademacher moved to declare said equipment as surplus and authorize the donation of same to non-profit and/or faith-based organizations within Weld County. Commissioner Conway seconded the motion. Responding to Commissioner Rademacher, Ms. Griego stated the laptops memories will be stripped and they are very old. There being no further discussion, the motion carried unanimously. CONSIDER CHILD PROTECTION AGREEMENT FOR SERVICES AND AUTHORIZE CHAIR TO SIGN - ACCOUNTABILITY POLYGRAPH SERVICES, INC.: Ms. Griego stated the term of this agreement is from October 1, 2011, through May 31, 2012, utilizing CORE funds at the rates as detailed in her staff memorandum, dated November 17, 2011. Commissioner Long moved to approve said agreement and authorize the Chair to sign. Commissioner Conway seconded the motion, which carried unanimously. CONSIDER TEMPORARY CLOSURE OF CR 28 BETWEEN CRS 19 AND 21: Janet Carter, Department of Public Works, stated this closure will commence November 29, through December 2, 2011, for a culvert replacement. She stated the average daily traffic count on County Road 28, taken in the year 2010, was approximately 158 vehicles, and staff will be using standard road signs and barricades throughout the closure. Commissioner Rademacher moved to approve said temporary closure. Commissioner Garcia seconded the motion, which carried unanimously. CONSIDER TEMPORARY CLOSURE OF CR 81 BETWEEN 160TH AVENUE AND CR 4: Ms. Carter stated this closure will be from December 5, through December 9, 2011, for a culvert replacement. She stated staff will use standard road signs and barricades throughout the closure, water will be applied for dust control, and there is no current traffic count in the area since this segment is very isolated. She further stated the project is being done in partnership with Adams County. Commissioner Conway moved to approve said temporary closure. The motion was seconded by Commissioner Garcia, and it carried unanimously. CONSIDER NONEXCLUSIVE LICENSE AGREEMENT FOR UPGRADE AND MAINTENANCE OF CR 106 RIGHT-OF-WAY AND AUTHORIZE CHAIR TO SIGN - CONTINENTAL RESOURCES, INC.: Don Carroll, Department of Public Works, stated this agreement pertains to a segment of County Road 106, located approximately eight miles south of the Town of Grover. He stated the County does have right-of-way, the surrounding property owners were contacted, and staff received no response. Responding to Commissioner Rademacher, Mr. Carroll confirmed there is a 60-foot right-of-way on the section line. Commissioner Long moved to approve said agreement and authorize the Chair to sign. The motion, which was seconded by Commissioner Rademacher, carried unanimously. CONSIDER COMMUNITY DEVELOPMENT BLOCK GRANTS PROGRAM APPLICATION FOR ESPANOLA SUBDIVISION PROJECT AND AUTHORIZE CHAIR TO SIGN: Elizabeth Relford, Department of Public Works, stated this application is for funding to improve the drainage infrastructure and community revitalization for the Espanola Subdivision, in response to requests from area residents. Commissioner Garcia thanked staff for working with the residents to find alternatives to fund this engineering project in an established neighborhood. Commissioners Rademacher and Conway also thanked Commissioner Garcia for his endorsement and assistance to staff. Commissioner Garcia Minutes, November 21, 2011 2011-3030 Page 2 BC0016 moved to approve said application and authorize the Chair to sign. Commissioner Rademacher seconded the motion, which carried unanimously. CONSIDER AGREEMENT FOR USE OF WELD COUNTY PROPERTY AND AUTHORIZE CHAIR TO SIGN - JOYCE SMOCK: Mr. Barker stated this agreement will allow for the use of an i-Pad by Planning Commissioner Joyce Smock. Commissioner Conway moved to approve said agreement and authorize the Chair to sigh. The motion was seconded by Commissioner Rademacher, and it carried unanimously. CONSIDER REQUEST FOR AUTOMATIC RENEWAL OF LAW ENFORCEMENT SERVICE AGREEMENT — TOWN OF MEAD: Alan Caldwell, Sheriff's Office, requested approval to renew the current Agreement with the Town of Mead, in the maximum amount of $79,540.00, at a rate of $51.00 per hour. He noted the amount does cover costs and there is no need to purchase additional equipment. Commissioner Garcia moved to approve said renewal. Commissioner Rademacher seconded the motion, which carried unanimously. CONSIDER AGREEMENT FOR PROFESSIONAL SERVICES AND AUTHORIZE CHAIR TO SIGN - RON SMITH AND ASSOCIATES: Ron Arndt, Sheriff's Office, stated the County was recently awarded a Coverdell Grant to provide crime scene court room testimony and this vendor provides training of crime scene analysts to obtain the necessary certification. Commissioner Rademacher moved to approve said agreement and authorize the Chair to sign. The motion, which was seconded by Commissioner Garcia, carried unanimously. PLANNING: CONSIDER REQUEST FOR REVIEW OF CONDITION OF APPROVAL #2.A AND DEVELOPMENT STANDARD #8 FOR USE BY SPECIAL REVIEW #1163 - TODD AND RHONDA AMEN: Chris Gathman, Department of Planning Services, gave a brief description of the location of the site, and indicated the USR was approved by the Board on October 1, 1997, which required a registered septic system and public water in the proposed building. He reviewed the historical uses and structures on the site, and noted Development Standard #10 also indicates the number of employees is to be limited to 15. He stated the applicants are requesting review of Condition of Approval #2.A and Development Standard #8 to allow portable toilets and bottled water, due to the fact that employees will come to the site, leave in company vehicles, and not return until the end of the day. He further stated County policy requires a septic system for year-round businesses, and due to the allowance for up to 15 employees, staff recommends denial of the request. In response to Chair Kirkmeyer, Mr. Gathman deferred to the applicant as to whether the permitted use has ever been operated from the site. He further stated the new proposed use is consistent with the original permit and the operator is willing to abide by all of the remaining Conditions of Approval and Development Standards. Sheri Lockman, Lockman Land Consulting, LLC, stated Mr. Amen appeared before the Board a few weeks ago concerning a different site with a similar use where employees only enter the site for a short period of time; however, in that instance they were permitted to use portable toilets and bottled water. She noted the Board also recently considered a Violation Hearing on property owned by Mr. Burough who intends to relocate the use to this properly permitted site to resolve the violation. Responding to Commissioner Rademacher, Ms. Lockman stated the existing residence is connected to public water and the original permit did allow employees to use the restroom facilities in the house, although that is not the intent of the applicant. In response to Commissioner Conway, Ms. Lockman stated Mr. Burough is aware of the restriction of up to 15 employees; however, he does not anticipate operating to that capacity. Todd Amen, applicant, confirmed the original permit did allow for use of the restroom in the residence; however, they would prefer to use portable toilets and bottled water, similar to the recently approved Minutes, November 21, 2011 2011-3030 Page 3 BC0016 permit on a separate property. Responding to Commissioner Rademacher, Mr. Amen confirmed there are no full-time employees at the site; they just park their company vehicles at the site overnight. There was no public testimony concerning this matter. Based on discussion, the Board agreed to amend Condition of Approval #2.A and Development Standard #8 to indicate portable toilets and bottled water will be acceptable unless there is a full-time employee at the site, at which time the applicant shall provide a septic system and public water. Commissioner Rademacher moved to approve the request of Todd and Rhonda Amen to modify Condition of Approval #2.A and Development Standard #8, as discussed. Commissioner Conway seconded the motion, which carried unanimously. (Clerk's Note: The Resolution was modified to reflect the language prepared by the County Attorney in a subsequent e-mail communication, marked Exhibit A, attached to the file.) CONSIDER ACCEPTING REQUEST TO WITHDRAW APPLICATION FOR AMENDED USE BY SPECIAL REVIEW PERMIT #1508 AND RESCIND RESOLUTION #2006-3030, DATED NOVEMBER 15, 2006 - RICHLAND TOWERS (LONGMONT BROADCASTING, LLC): Mr. Gathman stated the original applicant was Longmont Broadcasting; however, the property was purchased, in the year 2007, by Richland Towers which has requested a Withdrawal of the permit application and staff recommends approval. The applicant was not present. Commissioner Garcia moved to accept the request of Richland Towers to withdraw the application for USR #1508. Commissioner Long seconded the motion, which carried unanimously. CONSIDER INITIAL HEARING CONCERNING RESCINDING USR PERMIT #1534 - DCP MIDSTREAM, LP: Mr. Gathman stated he met with the applicant last week and determined the only outstanding item is submittal of the plat for recording. In response to Commissioner Conway, Mr. Gathman recommended a continuance until December 5, 2011, to ensure the plat is submitted and recorded. Patrick Groom, Attorney, represented DCP and stated they agreed to the requested plat changes, a mylar plat has been generated, and they anticipate submitting the signed plat later this week. In response to Commissioner Kirkmeyer, Mr. Barker agreed it is appropriate to refer this matter back to staff for completion. Commissioner Rademacher moved to dismiss the hearing and refer the matter back to staff. The motion, which was seconded by Commissioner Conway, carried unanimously. CONSIDER INITIAL HEARING CONCERNING RESCINDING USR PERMIT #1623 - JACOB AND WENDY SIMMONS, III: Michele Martin, Department of Planning Services, gave a brief description of the location of the site and stated USR #1623 was approved by the Board in 2009. She stated the applicants have concerns with the approved USR boundary line and the only remaining item to be completed is the recorded plat. In response to Chair Kirkmeyer, Ms. Martin confirmed the USR was approved for the entire 50-acre parcel; however, the application materials only include a map showing a close-up of the specific area where the use was to occur. Jacob Simmons III, applicant, submitted a copy of said application map, marked Exhibit A, and Wendy Simmons, co-applicant, was also present to answer questions. Mr. Simmons indicated their case file went missing during the transition from a prior Planning Director and they have recreated the missing documents at their own expense. He further stated they do not want the entire farm included in the USR boundary for tax purposes. In response to Commissioner Conway, Ms. Simmons reviewed the case history, also included as part of Exhibit A, and indicated they submitted everything and thought they were done until they received the letters from staff concerning the unrecorded plat. She stated, at the time of approval, the County regulations allowed for a USR boundary to be separate from the parcel boundary and she requested the Board grandfather their permit to the boundary that is specific to the use and not the entire 50-acre farm. In response to Commissioner Rademacher, Mr. Barker explained the submitted map does not include a Meets and Bounds description to distinguish the smaller USR boundary, and the applicant should go through the Recorded Exemption process to create the smaller parcel. He noted the applicants' request may create problems in the future should they wish to sell the veterinary business separate from the remainder of the property. In response to Mr. Simmons, Chair Kirkmeyer clarified the Minutes, November 21, 2011 2011-3030 Page 4 BC0016 USR permit does not affect the taxes; rather, the taxes are based on use. She also reiterated for the benefit of the property owners that if they want to sell the business, they will have to go through the Recorded Exemption process or sell the entire parcel as part of the business. Mr. Barker reiterated allowing the smaller USR boundary is also misleading to any potential buyers. Commissioner Conway suggested an additional note be placed on the plat to clarify the USR boundary does not create a separate lot. Ms. Martin stated there was a Condition of Approval which indicated the applicant needed to make modifications to the plat to be consistent with the Code at that time. Chair Kirkmeyer apologized to the Simmons' for the inconvenience of the lost file information. Ms. Martin clarified the entire file is not missing; rather, just the information that was provided to the case planner at the time who was working with the applicants to finalize the plat. In response to Commissioner Rademacher, Mr. Simmons indicated they understand they will need to complete a Recorded Exemption if they wish to sell the business separate from the overall parcel. Following discussion, the Board indicated the USR boundary should be that reflected on the map in the application materials, which does not create a separate legal lot, in accordance with the process allowed at the time of approval. Commissioner Conway moved to refer the matter back to staff with instruction to work with the applicant to finalize the plat with the smaller boundary as proposed in the application materials, pursuant to the regulations at the time of approval. Commissioner Rademacher seconded the motion, which carried unanimously. CONSIDER INITIAL HEARING CONCERNING RESCINDING USR PERMIT #1417 - PETER JACKSON: Kim Ogle, Department of Planning Services, stated USR #1417 was approved in 2003, the applicant, Peter Jackson, died in 2005, and his son, Andrew Jackson, is now operating the business. He gave a brief description of the location of the site and reviewed the four outstanding issues for the record. In response to Commissioner Rademacher, Mr. Ogle stated the applicant appears to be on track to complete the remaining issues and he is requesting six months to finalize everything. Andrew Jackson, applicant, stated he has met with staff and is trying to do what he can during a difficult economy. He stated everything has been submitted for the septic design; however, he is still working with the Colorado Department of Transportation (CDOT) regarding the turning access onto State Highway 392. In response to Commissioner Rademacher, Mr. Jackson confirmed the property is formally in the name of the Heirs of Peter Jackson. He requested an additional six months to acquire the necessary finances to complete the bathroom project and finalize the requirements of CDOT. Commissioner Rademacher moved to dismiss the hearing and refer the matter back to the Department of Planning Services for at least six months, with instruction that if they encounter additional delays, the matter may be presented to the Department Coordinator and brought back before the Board for further consideration. Commissioner Conway seconded the motion, which carried unanimously. CONSIDER INITIAL HEARING CONCERNING RESCINDING AMUSR PERMIT #954 - COLORADO ENG. EXPERIMENT STATION, INC. (CEESI): Mr. Ogle gave a brief description of the location of the property and stated the applicant has been working diligently with staff, they have met all of the outstanding Conditions of Approval, and they just need to digitize and submit the plat for recording. Eric Harmon and Roger Schaeffer represented the applicant and indicated they intend to complete the project within one month. Commissioner Conway moved to dismiss the hearing and refer the matter back to the Department of Planning Services for completion. Commissioner Garcia seconded the motion, which carried unanimously. RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the Consent Agenda. No Ordinances were approved. Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted by the Acting Clerk to the Board. Minutes, November 21, 2011 2011-3030 Page 5 BC0016 There being no further business, this meeting was adjourned at 10:08 a.m. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO f. . ATTEST: t� , c- 1,C icia_6_. 7j,04- Barbara Kirkmey9f, Chair Weld County Clerk to the Board Sean P. C Piway, Pro-Tern 8 BY: Deputy C k to the Board 4 IE LO ill F. Garcia CtA David E. LnJIE61 t ougla Rademacher Minutes, November 21, 2011 2011-3030 Page 6 BC0016 int/ C4 : RDINATION A STRATEGY FOR LOCAL CONTROL 111 gxtplyi AMERICAN STEWARDS OF LIBERTY c0 RDINATION A STRATEGY FOR LOCAL CONTROL Brought to you by AMERICAN STEWARDS( CONTENTS PAGE The Coordination Primer 3 Coordination is Not 8 The Coordination Process 12 The C CtRDINATION STRATEGY EVERYTHING passed in Washington D.C. must be implemented in your community to take effect. 'I here has been little we can do to affect the policies that hurt our communities... UNTIL NOW! CURRENT OUR STRATEGY Restoring Local Control A 1. Congress Passes Law ��" l� f' - mowTuYim mwuimunr ill • S, 2.Agency Designated I I to Impliment Law is tA)GOVERNMENT a@ilil /AGENCY )GOVERNMENT\/AGENCY -, LOCAL 1 GOVERNMENT 3.Agency Enforces Law on Local Communities Affecting Economy 3. Before an Agency Can Implement a Law it Must and Way of life l rech Coordinate with local Governments, Protecting the 'COMMUNITIES Community's Economy and Way of Life 1 teA ,w COMMUNITIES The answer is restoring local control across America by making the government agencies coordinate with you. This is where we step in. Through the strategies we teach, communities are protecting their local economy, restoring productive use of their land, and preserving their way of life. American Stewards of Liberty- 1 - THE COORDINATION PRIMER Federal and state statutes require administrative agencies to work coordinately with local government -- to "coordinate" with local government in developing and implementing plans, policies and management actions. The statutes create a process through which local government has an equal position at the negotiating table with federal and state government agcncies. They create a process which mandates agencies to work with local government on a government-to-government basis. Implicit in the mandate of coordination is the duty of the governmental representatives to work together in an effective relationship to seek to reach agreement on consistency between federal, state and local plans and policies. The coordination process is the most effective method for protection of the rights of citizens to own and use property. It provides a process through which local government can bring administrative agencies to the negotiating table on issues related to the community's economic stability and social and cultural cohesiveness. Citizens are limited in their ability to influence the decisions of government agencies. Their only participation, as individuals in the decision making-process, is through offering written or oral comments as to the agency's proposal. Most always, their oral remarks are limited to three minutes maximum. The agency's only responsibility is to summarize the public comments; they are under no obligation to negotiate any alteration of plans, policies or actions based on public input. In federal actions where the National Environmental Policy Act requires an environmental assessment or an environmental impact statement, the agencies have only the duty to summarize public comments in the assessment or statement. When local government represents its constituents' positions through coordination, the agencies have much broader duties. The agencies must listen to the local input, must analyze the local position to determine whether there is conflict between the proposed agency action and the local plan or policy and must use good faith effort to resolve any existing conflict to achieve consistency between the proposed plan, policy or action and the local plan or policy. When Congress or the state legislature orders agencies to coordinate their activities with local government, they require the agencies to go to the negotiating table on an equal footing with local government. The word "coordinate" is a word of common usage, a word of daily usage in general public communication. It is not a term of art or a term of scientific and special meaning. American Stewards of Liberty- 3 DEFINITION : (DE-F a-NI-SHa N) Federal and state courts have said repeatedly that when the legislative body uses a word of common, everyday usage without specific definition it is presumed that the legislative intent was to use the word as it is commonly defined for public use. The common dictionary definition of"coordinate" co•or•di•na•tion \ (koh-awr- shows that a person or party operating in "coordinate" 1. of equal importance, rank fashion is operating as a party of equal importance, rank subordinate, 2. one that is etc or degree, not subordinate." (Webster's New International importance, rank, or degree. Dictionary) in a common action or effort. :r harmoniously, 5. the dinating; the state of ! The American Heritage Dictionary defines harmonious harmonious ad - "coordinate" as "one that is equal in importance, rank, or degree." It also states that as a verb the term means "to harmonize in a common action or effort," "to work together harmoniously." It defines the term "coordination" as "the act of coordinating; the state of being coordinate; harmonious adjustment or interaction." The Courts which have been put to the task of defining the meaning of the term have gone to the dictionary definitions. In California Native Plant Society v. City of Rancho Cordova, 172 Cal. App. 4`h 603, 91 Cal. Rpr. 3d. 571 (Third App. Dist. 2009) the Court said this of"coordinate": "... the concept of'coordination'means more than trying to work together with someone else. Even under the City's definition of the word `coordination'means negotiating with others in order to work together effectively. To 'coordinate'is `to bring into a common action, movement, or condition'; it is synonymous with harmonize."(Merriam-Webster's Collegiate Dictionary. Supra, at p. 275, col. 1) Indeed, the very dictionary the City cites for the definition of the word `coordinate'defines the word `coordination'as `cooperative effort resulting in an effective relationship.'(New Oxford Dict., supra, at p. 378, col.3) 'Although the city suggests 'coordination'is synonymous with 'consultation'-- and therefore, the city satisfied its 'coordination'obligation under the general plan at the same time it satisfied 'consultation'obligation under the plan --that is not true. While the City could `consult'with the Service(Fish and Wildlife) by soliciting and considering the Service's comments on the draft EIR, the City could not 'coordinate'with the Service by simply doing those things. . . . by definition 'coordination'implies some measure of cooperation that is not achieved merely by asking for and considering input or trying to work together" The California case involved interpretation of a city General Plan relating to land use restrictions and zoning requirements. The plaintiff urged the court to set aside two city actions approving residential and commercial development on the ground that the city had not followed American Stewards of Liberty- 4 - the General Plan's requirement that mitigation of the impact of such developments be set in "coordination" with the United States Fish and Wildlife Service. The city argued that all coordination requires is soliciting input, carefully considering the input and responding to comments by the inputting party. Thus, the city argued that by soliciting input from the Fish and Wildlife Service, by considering the input and responding to, it "tried" to work together with the service and satisfied the "coordinate" requirement of its General Plan. As seen above, the Court repudiated the argument, holding that "coordination" requires far more than just seeking, considering and responding to input comments. Within the accepted dictionary definitions relied on by the California Court, when local government asserts the coordination authority granted to it by statute, it can and should expect to approach the negotiating table on an even par with the state or federal agency involved. It can and should expect that the state or federal agency will enter negotiations prepared to work effectively toward resolution of conflicts which may exist between local and state or federal policy, plan or action. In the state of Texas, when the Eastern Central Texas Sub-Regional Planning Commission was formed and asserted its authority to coordinate with the Texas Department of Transportation, as provided by Section 391 of the Local Government Code of Texas, it relied on the "equal, not wr. subordinate" definition of the word. The Texas Court of Civil Appeals referred to the dictionary definition when defining the Z. term "coordination" in Empire Ins. Co. of Texas v. Cooper. (138 S.W.2^s 159 (1940)) 'I' It is patently obvious that when a legislature uses the word "coordinate" or "coordination" it means more than "cooperate" or "consult". As the California court reasoned in Native Plant Society, supra, if the legislature intended mere cooperation or consultation, it could and would have said so. American Stewards of Liberty- 5s=,, CONGRESSIONAL MANDATE The first land use statute on the federal level that required coordination with local government was the Federal Land Policy and Management Act passed in 1976. Congress defined the term "coordination" by specifying exactly how the federal agency should negotiate with local government. 43 United States Code Section 1712 orders that the Bureau of Land Management coordinate its "land use inventory, planning and management actions with...any local government..." Congress directs that the agency implement this requirement by doing the following: 1. Keep apprised of State, local and tribal land use plans; 2. Assure that consideration is given to local plans when developing a federal plan, policy or management action; 3. Provide early notification (prior to public notice) to local government of development of any plan, policy or action; 4. Provide opportunity for meaningful input by local government into development of the plan, policy or action; and 5. Make all practical effort to resolve conflicts between federal and local policy, and reach consistency. The National Forest Management Act requires the Forest Service to coordinate with local government; in 16 United States Code Section 1604, Congress ordered the Service to "develop, maintain, and, as appropriate revise land use resource management plans. . .coordinated with the land and resource management planning processes of State and local governments and other Federal agencies." Both the Bureau of Land Management and the Forest Service issued rules for implementation of"coordination" and the rules reflect the statutory mandate of seeking consistency between federal and local plans, policies and actions. The "coordination" mandate is included in every other natural resource management statute which Congress has passed since 1976. Even in the Homeland Security Act, Congress directs that coordination exist with local government AND with local officials. The most recent Congressional direction that coordination take place is in the Owyhee Public Lands Management Act of 2009, in which the Secretary of Interior is directed to implement the act in coordination with the County, State and Tribes. Given the dictionary definition of the term and concept of"coordination," given the actions which the agencies must take under FLPMA, it is apparent that Congress intended to require equal base negotiations to reach consistency. American Stewards of Liberty- 6 - In 1982, the Secretary of Agriculture issued the first rules to define coordination as required by the National Forest Management Act. Those rules required Forest Service line officers to take the same steps as those required of Bureau of Land Management officers by FLPMA. The bottom line for compliance with the 1982 rules is to reach consistency. The 1982 rules are significant and relevant because they are the only Forest Service rules issued in the last three decades that have passed judicial muster, and thus are still applicable. All successor planning rules have been declared invalid because of NEPA violations in the rule making process. When a unit of local government -- any unit of local government that is a political subdivision under state law -- exercises its statutory authority to "coordinate," it can and should expect the federal or state agency to negotiate with it on an equal footing, making a good faith effort to reach consistency between federal/state and local plan, policy or action. Congressional Criteria The agency shall: I. Keep apprised of State, local and tribal land use plans; 2. Assure that consideration is given to local plans when developing a federal plan, policy or management action; 3. Provide early notification (prior to public notice) to local government of development of any plan, policy or action; 4. Provide opportunity for meaningful input by local government into development of the plan, policy or action; and 5. Make all practical effort to resolve conflicts between federal and local policy, and reach consistency. American Stewards of Liberty- 7 - COORDINATION IS NOT . . We have set forth clearly what coordination is in "The Coordination Primer." The parameters of the meaning are prescribed clearly by considering what Coordination is not. COORDINATION IS NOT COOPERATION Coordination is much more than cooperation. It is not"cooperation," "cooperate" or "cooperating." The word "cooperate" is defined as "to act or work with one another" or "to associate with another or others for mutual benefit." The word "cooperation" means "common effort... for common benefit." (Merriam- Webster Dictionary) co•op•er•a•tion \ associate with another or of I benefit, 2. assistance or Willi: No version of the word "cooperate" 3. The association of persons carries any connotation of equal parties striving for common, usually economic for harmonious result as does coordinate iractice of cooperatin_=_ and coordination. A superior party can 7e assistance from a on cooperate with an inferior parry. By the nation, etc.: We sough act of cooperation, the inferior party does not become equal to the superior. Unequal parties can "cooperate" by working together to accomplish their unequal goals. But, by dictionary definition and under the definition set forth in the California Native Plant Society v. City of Rancho Cordova, 172 Cal. App. 4's 603, 91 Cal. Rpr. 3d. 571 (Third App. Dist. 2009) only equal parties coordinate. The federal agencies, particularly the Forest Service, seek to lure local government into a "cooperating agency" role. As such "cooperating agency," the local government sits at the planning table with the federal interdisciplinary planning team. The agency can provide input into the planning activity, and the federal team listens. But, then most often, the local input is ignored and never referred to in the planning document that emerges from the meetings. There is no requirement that the federal agency use the local input, refer to the local input, describe how it has used the input or describe why it has not used the input. Often, as in the case of Fremont County, Wyoming, the input of the County was ignored. The Fremont County Commissioners explained to the Forest Supervisor when deciding to "coordinate" instead of "cooperate," "we talk, you appear to listen, but we never see any further reference to what we say; what we say is never discussed and it doesn't appear anywhere in your planning product." American Stewards of Liberty- 8 - As a cooperating agency, the local government can be assigned planning tasks, which it is expected to finance and perform. Yet, there is no obligation on the agency to make any meaningful use of the task result. The 1982 Forest Planning Rules, the Forest Travel Management Plan Rules, and the BLM Planning Rules all require that the agency coordinate by being apprised of local plans and policies, noting conflicts between federal and local plans and policies, reporting the interactive impacts of the federal and local plans and policies, and establishing alternatives for dealing with the impacts, i.e., resolving conflicts. There are no such requirements related to the cooperating local government. Two parties can "cooperate" by sitting together and discussing an issue simply for the purpose of understanding each other's position. It is to their mutual benefit to understand their competing positions, even though there is no resolution of the conflict that exists. They each describe their position; they listen to each other and decide that they cannot reconcile their differences. They have "cooperated." They have not "coordinated." COORDINATION IS NOT CONSULTATION The term "consultation" means deliberating together, discussing with each other. The word "consult" means "to ask the advice or opinion of another" or to "deliberate together." In effect, an agency can consult with local government simply by talking to the governing board of the government, and listening to its advice or opinion. Again, in the act of consultation, there is no obligation on the part of the agency to determine whether there is a conflict between con•sul•ta•tion \ (kon-suhl-i the federal plan and policy and the local plan the act of consulting; conferee, and policy or to attempt to resolve the conflict. for deliberation, discussion. An agency can "consult" with local government ask the advice or opinion of;r by doing no more than listening to the local deliberate together, 5. a nu'(]i government's governing board. As determined fans to evaluate a pau by California Native Plant Association, merely eatment, 6. to delibcr: listening, i.e., consultation, does not constitute "coordination." A superior officer can consult with a junior officer with regard to who should be promoted. That means he speaks to the junior about the promotion and listens to his opinion. Suppose the junior officer recommends "x" for the promotion. After listening, the senior officer promotes "y" and does not bother to explain why he did not follow the junior's advice. The senior officer has consulted with the junior officer, but he has not coordinated with him. American Stewards of Liberty- 9 - COORDINATION IS NOT SUPREMACY In the early days of local government's foray into the coordination concept established in the Federal Land Policy Management Act, local government urged that it had supremacy over the federal agency with regard to land lying within the boundaries of the unit of local government. The "county supremacy" doctrine was based not only on the language of FLPMA, but on the historical and traditional place of the county in the hierarchy of government. The counties which urged the existence of supremacy contended that the federal agency had to manage in accordance with local policies and plans, had to acquire county approval for entry into the county to conduct its management duties, and had to obey the county land use plan and policy. Boundary County, Idaho enacted an ordinance in 1991, which required all federal and state agencies to comply with its land use policy and plan. It based its ordinance on "local custom and culture." The County simply followed the lead of Catron County, New Mexico, which acted on the ill- conceived argument that the custom and culture of local government gave the county a supremacy position with regard to land use control over federal lands. How much the "supremacy" of local custom and culture was influenced by the ill-fated Nye County, Nevada resolutions that the county owned all federal lands, is not clear. But, the Nevada notion was stricken down in United States v. Nye County, 920 F. Supp. 1108. Catron County rescinded its ordinance before it could be stricken by a court, leaving Boundary County to be the scapegoat. The Idaho Supreme Court declared the ordinance invalid in Boundary Backpackers v. Boundary County, 128 Idaho 371, holding that it violated the supremacy clause of the Constitution. The Court held that Congress' power under the property clause is exclusive, without limitation, and free from state interference. Therein lies the difference between coordination and supremacy. Congress does have exclusive power over the federal lands. In the exercise of that exclusive power, Congress has mandated that the Bureau of Land Management and the Forest Service "coordinate" their planning and management processes with local government. The coordination mandate is found in the Federal Land Policy Management Act and the National Forest Management Act. Both are federal statutes passed in accordance with Congress' constitutional power, thus they are the supreme law of the land. Therefore, the coordination requirement is the supreme law of the land which must be obeyed by the agencies. Coordination is a process for reconciliation of conflicts between federal and local policies. It does not provide local government with any type of supremacy. It does provide local government with an equal seat at the negotiating table. It does require the federal agencies to negotiate in good faith to resolve conflicts. As Lois J. Schiffer, Assistant Attorney General for the Environment Division of the Department of Justice said on July 28, 1995: "We welcome local participation in land management American Stewards of Liberty- 10 - decisions." She made the statement as she and Peter Coppelman, Deputy Assistant Attorney General for the Environment and Natural Resources Division asked the District Court in Las Vegas to set aside Nye County's resolution of supremacy. Coppelman later authored an opinion in the American Judicature Society Journal that while local government was not supreme, it did have the authority to use the coordination process set forth in FLPMA. SUMMARY Coordination is a process far stronger than either cooperation or consultation. It is not supremacy and does not carry with it any type of veto or control over federal management. It does, however, authorize local government to come to the negotiation table on an equal basis with the federal management agency, which has the obligation to use good faith in trying to resolve conflicts between local and federal policies and plans. American Stewards of Liberty- 11 - THE COORDINATION PROCESS The coordination process is simple to initiate; implementation is a simple processing job, but effective coordination requires hard work. Victories, like the big win in Texas, do not just "happen," they require that folks roll up their sleeves and work. There must be commitment to make the process work. Almost assuredly, the agency will not help you provide the energy or the will needed to make the process work. There is no set process for implementing the coordination requirement, but the following outline is a good guide. Whatever the process or outcome, coordination facilitates solutions to local issues and is the embodiment and implementation of local control. 1. IDENTIFY THE LOCAL GOVERNMENT TO EXERCISE COORDINATION Coordination is performed by local units of government. These normally include counties, incorporated cities, water districts, school districts, or any legislatively, statutorily created government entity with local planning, taxing, enforcement, or regulatory authority. If local officials haven't initiated coordination on their own, begin by identifying which local unit of government will serve your interests best. a. Educate Yourself: Begin by developing a good working understanding of the process. Reading this pamphlet is a good start. Read through the statutory language applicable to the agency at issue found in the Coordination Workbook and online at www.americanstewards.us. Read through the case studies and letters that have been written by local governments and received from state and federal agencies in the coordination process, also found in the workbook. Attending workshops where you can visit one-on-one with those who have used this process successfully is also very helpful. Call American Stewards with your questions. You do not need to be an expert on coordination, but should be knowledgeable on how this process can help your local governments consider this approach. b. Identify the Local Government Unit: Local politics can easily get in the way of implementing good ideas such as the coordination process. If you do not already know the people on the various governing boards in your community gather as much information as you can on your leaders. Consider their positions on different issues. Visit with the elected officials to get a more personal understanding of their perspective. Look at the board's decisions to see where they align. Through this research, it may become clear which unit of government would be most likely to utilize coordination. If not, then start by focusing on your county. They have responsibility over all issues in the county and are formally structured with regular meetings. American Stewards of Liberty- 12 - c. Meet One-on-One with Local Leaders: Begin with the County Judge, Chairman, Mayor, or President of the Board you have selected (or someone you already know personally on the board). Ask for a meeting to visit with them about a process you've heard other local governments using to preserve their economy and way of life. Bring copies of materials, such as this pamphlet or the coordination workbook for them to study after you leave. Tell them why you believe the local government needs to be involved in this. Discuss the issues that can be resolved through this government-to-government process by having a seat at the table with the agencies. If they are interested in moving forward, ask for time on their agenda to present the idea and then begin meeting individually with the other board members so they have time to consider this and ask questions as well. Remember to keep your discussion focused on local issues, not national problems. Your local governments cannot fix problems in Washington D.C., but they can fix problems at home. Stay focused on the issues that need to be resolved locally. d. Navigating Potential Opposition: Depending upon the political climate of your area, you may meet resistance from advocacy groups or even elected officials. In this case, you need to assess whether you should work publicly or quietly to get the local government committed to coordinate. Identifying these people before you begin making the effort public is critical to your success. You need to understand the political mine fields upfront, or your entire effort can be derailed. The one-on-one conversations with the elected leaders whom you know will be friendly are very important to determining whether you should work to get the public behind the process first or whether you should work quietly to get the local government on board. If there is going to be major opposition from board members, give strong consideration to choosing a different local government unit. Key to successful coordination is a committed and unified board, one that cannot be swayed by agency pressure or politically split because there is no unified consensus. e. Execute Simple Resolution: Once a local government unit has agreed to utilize coordination, all that is needed to begin the process is the adoption of a simple resolution by the local unit of government setting forth the following: 1) You are the duly elected governing body of your unit of government; 2) It is your duty to care for the public health, safety and welfare of your constituents, which includes a stable economy, productive industry and healthy environment; and, 3) Set forth that you are asserting the coordination authority to request the agency to coordinate with you as required by federal and/or state statute. The resolution shows the unity of the board, to show that it is board action, and not one member's action, that authorized utilizing coordination with the agencies. 2. INITIATING THE PROCESS a. Decide Policy or Plan: You need to establish a clear agenda of what you wish to achieve through coordination. Some refer to this as setting priorities. What are the priority issues that must be resolved? What is the outcome that would solve the problem for your community? Discuss fully the issues you are having with an agency or several agencies; include in the discussion the federal or state agency action, plan, or policy that is harming your community or you think will harm you in the future. Decide what you would like to see substituted for the government policy or plan, and formulate your local policy or plan to deal with the resource, economic or social issues discussed below. Your local unit of government can choose to adopt a detailed plan, but these take much longer and are much more difficult to arrive at any kind of consensus. Normally, it is better to start simple and deal, at most, with one or two issues. American Stewards of Liberty- 13 - b. Factors in Deciding Policy or Plan: In developing a plan or policy, keep the following concerns in the forefront of all your choices: What are the economic, environmental, social and public safety concerns that directly affect your local community. For economic include the protection of your tax base, economic stability of your citizens and local businesses, resource revenue from farming, ranching, timber, mining, and all other resource extractions that benefit your local economy, protection of private property; for environment consider protection of natural resources, land improvement, wildlife protection, water and air quality; for social consider the welfare of your local school system and how your volunteer fire department and ambulance services are funded and maintained, recreational and tourism opportunities, and all elements of the cultural structure of the community; and for public safety consider law enforcement and public hazards. Remember, health, safety, and welfare of the community should always take precedence in your thought process. Sample Policy: If a Travel Management Plan is being prepared, your policy could be "All open trails and roads should be designated as open. Full open access should be made available to the public lands for local purposes such as safety, health, economics, and use of recreation as assured by Executive Order of the President. No road or trail should be closed unless public safety or health demands its closing. No RS 2477 right of way should be closed." In Texas, it was as simple as: "No Trans-Texas Corridor shall be built through our jurisdiction." c. People Resources: As you begin, it is desirable to gather together people who will become resources from which you can depend on for research, expertise, advocacy, and support. These are called various things depending on how formal or informal the group is to the coordination process. You can either have a simple working group or an advisory council or committee and it can be a formal or informal group. If formal, have the elected body appoint the members. Select a chair, vice-chair, and secretary, hold regular meetings that coincide with and function as a support group to the coordination process, and take minutes. Remember, local units of government and their elected representatives are the ones who will perform the coordination process with federal and state agencies. Your job as a support group is to serve if asked, make presentations if called upon during coordination meetings, and provide support with research and documents that help further the cause and focus the efforts of the coordination process. These groups can include various industries of the area, affected individuals, landowners, businesses, and organizations that have a vested interest in the process. If there is no such group, you don't need to recruit one. If there is such a group, they can he invaluable to you as advisors on policy and strategy. If you have such a group, name them as an advisory committee or a work group and let them help you set local policy. — d. Write, Sign, and Send Letter: To begin the formal process of coordination with the agency a letter needs to be sent to the local head of the federal or stare agency explaining that you have asserted your coordination status and that you would like to meet with him/her to begin coordination discussions. If you have decided on a priority issue or two that you arc ready to meet about, then schedule a meeting and inform the agency of your desire to begin coordination over your priorities/issues. American Stewards of Liberty- 14 - Sample Letter: "We would like to meet with you on or at 2pm in . Please call our clerk by (normally give them 30 days to respond) and advise us of the date convenient to you. If neither of these dates is available, please arrange with her/him a date available to both you and the Board." If you have decided to discuss a specific issue then list the issue you wish to discuss. The letter should contain a brief statement of the authority giving you the right to assert coordination. In most instances, the agencies first reaction will be to ignore or reject your coordination request. Never give up. This will likely be their first introduction into the process. On the other hand, local agency personnel may understand the requirements and try to neutralize your effort by convincing your elected officials to "coordinate" as a "cooperating agency." These efforts must be resisted if you are to successfully focus the agency on your local issues. If the agency resists real government-to-government coordination, the local unit of government should send a second or third letter to the next level up the chain of command until you reach the head of the federal or state agency. You may also eventually notify the Department of Justice as your final effort, so that they can clarify the coordination requirements to the agency. 3. IMPLEMENTING THE COORDINATION PROCESS a. Coordination Agenda: After the meeting is scheduled, you should send an agenda labeled "Coordination Agenda for ," state your agenda and then ask for the agency to add anything to the agenda they would like to discuss. State that this will be a "government- to-government coordination meeting." It will be an open meeting so that the public can attend, but there will be no public comment because of the government-to-government nature of the meeting." The Agenda should be sent at least ten days prior to the meeting date. If they respond and Year,'` even add to the agenda, then they have tacitly agreed to coordination. • b. Post Notice of Meeting: Each meeting should follow all Open Meeting laws and be posted normally 72 hours prior to each coordination meeting. The agenda should represent all the business that will occur and should be posted the normal way all other meetings are posted for the county, city or local unit of government. c. Be Prepared: Prepare well for the first meeting. The agency will be checking you out to see whether you are serious about this process or whether they can just let you slide and you will go away. Be prepared on your facts. Use your work group to help get prepared for the meeting. Study the agencies statutes and regulations so you can ask specific questions that they aren't prepared to answer. You want to be able to keep them on the defensive, which is why you need to know your facts. For instance, if the meeting involves open trails or roads, be prepared to discuss some of the roads and trails you know are used and be able to tell them what the public safety, health, or economy issues are by keeping that road or trail open (always think public safety, health and economy). Be prepared with the latest agency map, that you are aware of, so that they can show you what they are up to; let them know that you expect a map on which American Stewards of Liberty- 15 - they are currently working. You may have all or some of the advisory committee at the table with you as advisors. If someone has specific knowledge about a road, let them describe the road and ask questions regarding its use. 4. THE MEETING a. Welcoming Statement: As the local government body who called the meeting the chairman (head) of your local government is in charge of running the agenda. Welcome the agency and introduce your commissioners or special district directors and advisory committee members who may have a special part in your meeting. Make sure you welcome them to a "coordination meeting," then let the agency head introduce staff he or she has brought. b. Opening Statement: Next, make an opening statement that says "this is a government-to- government coordination meeting made possible by federal and/or state statute. It is an open meeting at which the public may attend and listen, but there will be no public comment period since it is a government-to-government meeting. If any member of the public has a comment, you can make it at the public comment period provided at our next regular meeting." Once finished, you can ask the agency head if he/she would like to make an opening statement. Do not let this become an opportunity for the agency to monopolize the time. Keep this brief and on point. c. Proceed with Agenda: Begin to work through the agenda items. The purpose of the meeting is to have an open discussion with the agency about the issues of concern. Present your issues first to make sure that your concerns are delivered and time is not absorbed by agency officials discussing irrelevant issues. Your concerns are the focus of the meeting. Have each one of your elected officials prepared to ask questions on different topics so that the time is productive for both you and the agency. For the more detailed issues, you can have someone (associate, consultant, committee member) prepared to address that issue in greater detail if necessary, depending upon the direction the discussion takes. d. Identify Issues: As the meeting ends, identify the issues that were not decided and that need more discussion or more information from the agency or from you (the new maps the agency is working from for example), and make a list of them. Make a list of things the agency needs from you. Then ask the agency head for a date for the follow up meeting at which the new information can be reviewed and discussed. Agree on a date for the next meeting before ending the meeting. e. Record Meeting: If possible, — a purchase a digital Olga recorder preferably with an attachable microphone so everyone around the table can be heard and recorded. After the meeting, have your recording secretary transcribe the discussion attributing each statement to the person speaking so they can be identified as to who said what. The secretary also needs to draft the minutes of the meeting to be signed by the members of the local unit of government and placed in the official record book of the coordination group. All correspondence from and to the local unit of government should be placed in the "Official Record Book." American Stewards of Liberty- 16 - 5. AFTER MEETING a. Debriefing: After the meeting, have a debriefing session with your members and the working group or advisory committee members that were allowed to participate in the coordination meeting. Get their ideas as to how the meeting went and begin to develop your goals for the next meeting. Remember, in this baby step process, if the agency agreed to come to the second meeting, progress was made. b. Press Release: If the press was not present, get a press release about your first coordination meeting with the agency to the local newspaper (s), and arrange to speak to an announcer on local radio programs about the meeting. It is important that your constituents know that you are meeting with the agency. Keeping the public aware of what you are 6r . s doing is almost as important as the fact that you are doing it. We live in a land of people who are sick and tired of doing nothing; they want action taken. { j c. Letter to Agency: Write a letter to the agency thanking them for attending the meeting and reminding them of the material you requested, and either provide information you promised or at least tell them that you will get it to them rapidly. d. Gain Support/Allies: Locate and contact either in writing or in person with organizations in your community that have issues with the agency and tell them about your first meeting with the agency. Explain what coordination is, and ask them to advise you of any issues they are currently having with the agency. fell them about your next meeting, explain that it is an open meeting, but it is government-to-government with no public comment period. Gain their trust the best you can and get them to help with research and/or to support the coordination process and the local elected officials who are performing the task. This gets the public involved and keeps the elected officials focused and enthusiastic about the process. e. All Follow-up Meetings: For all subsequent meetings, follow the same preparation and presentation for the first. Be working constantly to develop the strategy you will use with the agency regarding each issue. Begin to prepare local policy for each of the issues you identified in the beginning stages of coordination. Strategy is an on-going process -- coordination is a process run by strategy. Always have your strategy in mind before you go into a meeting. Each meeting you will learn something new. If you have multiple meetings with multiple agencies, you will learn something from each that can be used to your advantage. You will be told something that the other agency won't want you to know. Use it to your advantage. This is why you need to record and transcribe your meetings so you can review and study what was said in response to your questioning. 6. THE PLAN Is a formal plan necessary? No. What is necessary is that you have a definite local policy, in writing, through resolution or a motion by the board, that shows the position you expect the agency to take. As you develop policies, it is useful to put them in a "Plan" document so that you have proof in quickly readable form of your policy, and so that your constituents know your policy regarding resource issues. The Plan, as a document, can be amended through additions of policies American Stewards of Liberty- 17 - with background explanations of the policy. Normally, you want to follow the KISS doctrine (keep it simple stupid). Starting with one or two policies is much easier than developing an entire plan for your community. 7. SUPPORT Remember, coordination is a process. Victories come after long hours of work, research, meetings with the agencies, discovery, and diligence. Perseverance is a virtue. If you prepare and realize victories can be small or large, you will succeed at this. Set your goals, work extremely hard to achieve your goals and watch how the coordination process produces miraculous results. If you get to a place where you need advice, call our offices and we will help you through the next step. We can arrange to meet by teleconference with your local leaders if necessary to help answer questions. In some cases, we can also visit your area and work with your elected officials, committee members and others who will be vital to your success to help develop your specific strategies. Our goal is to educate and train you and your key people to be able to handle all the issues you may face today and in the future. American Stewards of Liberty- 18 - A V' '+ A, \ TT A Nip PROTECTING PEOPLE AND PROPERTY EDUCATING AMERICA ON ISSUES AFFECI ING PROPFRTY RIGHl5 AND INDIVIDUAL LIBERTIES FIGHTING LOCALLY WHERE PEOPLE CAN STILL AFFECT LOCAI. POLICYMAKERS TRAINING LOCAL. 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