Cooperating Agencies

What is a cooperating agency relationship?

The Council on Environmental Quality (CEQ) regulations at 40 CFR 1500-1508 make the cooperating agencies partners in environmental analysis process.  The cooperating agency relationship is distinctive, moving beyond consultation to engage officials and staff of other tribal, federal, state, and local agencies in a working partnership.  The cooperating agencies share skills and resources to help shape environmental analyses so that decisions resulting from those analyses better reflect the policies, needs, and conditions of their jurisdictions and the citizens they represent.

What is the Forest Service cooperating agency policy for environmental analyses pursuant to the National Environmental Policy Act (NEPA)?

The Forest Service established its cooperating agency policy in a 1998 letter that states:

Congress intended that the Federal government cooperate with State and local governments to achieve “productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”  Creating that productive harmony requires considerable effort; however, because of the complex jurisdictional and management issues related to Federal lands and the fact that State and local governments as well as Indian Tribes own and manage lands which are often near, adjacent to, or intermingled with Federal lands.  As an outgrowth of these land ownership patterns, Federal, State, local, and tribal government entities have increasingly sought to coordinate their decisions as a means of improving land management.  By embracing closer cooperation during the environmental analysis process, all levels of government can better assess the context of Federal actions and can better integrate decisionmaking within their jurisdictions.

Why are cooperating agencies necessary in the NEPA process?

In the American political system, different spheres of government—federal, tribal, state, and local—have respective areas of responsibility, authority, and expertise.  NEPA calls on federal, state, and local governments to cooperate with the goal of achieving “productive harmony” between humans and their environment by allowing federal agencies (as lead agencies) to invite tribal, state, and local governments, as well as other federal agencies, to serve as cooperating agencies in the preparation of environmental impact statements.

The Forest Service has a large and complex responsibility in managing a portfolio of public lands that encompass varied terrain, from desert landscapes to the open spaces surrounding many rapidly growing urban areas.  The challenge is to manage this portfolio on behalf of all Americans, while recognizing the considerable local and regional consequences its decisions may have.  The Forest Service must act in conformity with federal laws, regulations, and policies while seeking to accommodate local needs, laws, and values.  Utilizing cooperating agency principles and requirements assists the agency with meeting these challenges by ensuring that its decisions benefit from the varied skills and knowledge, including knowledge of local conditions and values, of its governmental partners.

What do cooperating agencies bring to the NEPA process?

Harmonizing national, regional, and local governance entails at least three key tasks.  As Matthew McKinney and William Harmon have noted in their list of Common Characteristics of Western Resource Disputes, these include (1) integrating the involvement of multiple parties with competing interests and values; (2) removing obstacles to sharing and validating relevant information; and (3) resolving conflicts among institutions and policies.

• Multiple Parties.  Tribal, state, and local government officials are at times in a better position than are federal land managers to engage the communities and interest groups most likely to be affected.
• Complex Information.  Effective discussion between federal agencies and their publics is often blocked by deeply incompatible views of the “facts” regarding both current environmental and socioeconomic conditions and how these will be affected by a proposal.  Resolution often requires the lead agency and cooperating agency partners to engage in joint fact-finding and to seek agreement on where to find valid information and how to interpret it.
• Conflicting Policies and Institutions.  The challenge of managing public lands can reveal significant disagreements in jurisdictions and mandates, not only between federal, state, local, and tribal governments, but also among different federal or state agencies.  The cooperating agency relationship offers a forum in which to discuss and, if possible, reconcile divergent policies and plans for the common good.

How do cooperating agency relationships assist the Forest Service in addressing challenging intergovernmental cooperation?

Although challenging, intergovernmental cooperation in the management of lands and resources can yield great benefits for the public.  By providing a framework for intergovernmental efforts, the cooperating agency relationship can help achieve the following objectives:

• Gain early and consistent involvement of cooperating agency partners;
• Incorporate local knowledge of economic, social, and environmental conditions, as well as state and local land use requirements;
• Address intergovernmental issues;
• Avoid duplication of effort;
• Enhance local credibility of review processes;
• Encourage cooperating agency support for planning decisions; and
• Build relationships of trust and cooperation.

The cooperating agency relationship is one tool among many that can advance joint efforts among governmental partners.  Each party may have some lessons to learn—and some past practices to unlearn.  Experience has shown three lessons that are important to success when working across governmental boundaries.

1. Tribal, state, and local partners need to recognize that the cooperating agency relationship is a forum for sharing information and expertise, not for asserting or relinquishing authority.  Engaging in a cooperating agency relationship neither augments nor diminishes an agency’s jurisdiction or authority.

2. Forest Service managers and staff should acknowledge that the cooperating agency relationship requires new ways of doing business.  Engaging with government partners as cooperating agencies is not another form of consultation or public involvement.  Cooperating agencies expect and deserve to be given a significant role in shaping plans and environmental analyses—not merely commenting on them—commensurate with their available time and knowledge.

3. All parties will find the cooperating agency relationship most productive when they emphasize mutual, rather than individual, gains and seek solutions that meet others’ needs as well as their own.

What types of organizations may serve as cooperating agencies?

The cooperating agency relationship is limited to governmental entities: tribal governments, state government and its agencies, local governments and their agencies, and other federal agencies.

What governmental entities are eligible to be granted cooperating agency status?

State agencies, local governments, tribal governments, and other federal agencies may serve as cooperating agencies.  Other than its provision for tribes, the Council on Environmental Quality regulations recognize two criteria for cooperating agency status: jurisdiction by law and special expertise:

• “Jurisdiction by law” means agency authority to approve, veto, or finance all or part of the proposal.  Jurisdiction by law offers a very specific basis for cooperating agency status: authority to approve, deny, or finance all or part of a proposal [40 CFR 1508.15].
• “Special expertise” means statutory responsibility, agency mission, or related program experience.  Special expertise provides a broader window for cooperating agency status, emphasizing the relevant capabilities or knowledge that a federal, state, tribal, or local governmental entity can contribute to an undertaking [40 CFR 1508,26].

For the Rosemont Copper Project the Forest Service is executing a Memorandum of Understanding (MOU) with each cooperating agency that establishes the cooperating agency relationship and identifies the basis for each cooperating agency’s eligibility to participate in the environmental study and development of the environmental impact statement documents.

What discretion do federal agencies have when requested to serve as cooperating agencies?

A federal agency eligible on the basis of jurisdiction by law must serve as a cooperating agency when so requested [40 CFR 1501.6].  A federal agency eligible on the basis of special expertise, and a tribal, state, or local entity eligible on either basis may choose whether or not to serve as a cooperating agency when so requested.

Does a cooperating agency relationship require the Forest Service and the cooperators to make decisions by consensus?

No.  The Forest Service will collaborate with the cooperating agencies to arrange for collection of resource, environmental, social, economic, and institutional data and information, or to share data that is already assembled and available.  Collaboration mandates methods, not outcomes.  It brings diverse parties together to seek broadly acceptable solutions to what are usually complex problems.  It does not imply that the parties will achieve consensus.  The Forest Service remains the final decision maker on matters within its jurisdiction.

How does the involvement of cooperating agencies affect the Forest Service responsible official’s role in the development of the Rosemont Copper Project Environmental Impact Statement?

The Forest Service responsible official for the Rosemont Copper Project is the Forest Supervisor for the Coronado National Forest.  Involvement of cooperating agencies makes the Forest Supervisor’s leadership of the Rosemont Copper Project environmental study process even more essential.  In guiding the environmental study efforts, the Forest Supervisor faces the challenge of reconciling agency policy objectives with the needs and values of local, regional, and national constituencies.  This requires a serious commitment to collaborative problem solving.  A common thread that runs through each step in the analysis process is the role of the Forest Supervisor who must establish a vision and lead the way, and must be committed to the environmental study effort for it to succeed.

Does collaborating with cooperating agencies limit the range of issues and solutions the Forest Supervisor will consider?

Because a key reason to involve other units of government is to benefit from their distinctive perspectives and expertise, innovative approaches should be encouraged.  Nonetheless, collaboration increases the need to establish practical parameters for the environmental study process.  The Forest Supervisor is responsible for clarifying for cooperating agencies the purpose and need for undertaking the environmental analysis.  This purpose and need would include, where appropriate, the range of potential issues and alternatives consistent with statutory and regulatory requirements.  Such limits are best established through clear criteria and a well-developed statement of purpose and need.  An example of how the Forest Service provided such clarification for cooperating agencies in the Rosemont Copper Project comes from the “Rights of Mining Claimants” handout provided to cooperating agencies at the June 18, 2009, Cooperating Agency Coordination meeting.

Do potential cooperating agencies have a say in determining the objectives and ground rules of the lead agency-cooperating agency relationship?

Yes, the Forest Service negotiated a Memorandum of understanding with each cooperating agency to establish a cooperating agency relationship that reflects the views of all parties and signatories.

Is it appropriate to extend a project schedule to accommodate the needs of cooperating agencies?

Normally, no.  The schedule for the Rosemont Copper Project environmental study was negotiated and established in a separate Memorandum of Understanding with the project proponent, Rosemont Copper Company (08-MU-11030510-010.  That document provides a process for further adjustment of the schedule, but does not require the Forest Service to change the schedule to accommodate cooperating agency preferences or desires.  With the exception of other federal agencies having jurisdiction by law, no government entity is required to participate as a cooperating agency.  The preferences of cooperating agencies regarding the pace and direction of the environmental study process do not supersede the need to adhere to the established schedule.

If effective collaboration with cooperating agencies would be compromised by adhering to an established planning schedule, what are some solutions?

The Forest Service and the cooperating agencies have a number of options:

• Vary the level of a cooperating agency’s involvement.  The Council on Environmental Quality regulations make it clear that cooperating agencies may negotiate a level of involvement consistent with their available staffing and resources [40 CFR 1501.6(c)].  The cooperating agencies may vary the time and resources they commit by determining which meetings to attend, whether to offer data or analyses, or both, and at what stage of document preparation to comment.
• Seek ways to reorganize the planning schedule for greater efficiency, without modifying the deadline for plan completion.
• Improve the efficiency of collaboration between the cooperating agencies and the Forest Service interdisciplinary team.  For the Rosemont Copper Project, the Forest Service has provided a dedicated Cooperating Agency Liaison position that is responsible for facilitating the speed and focus of these interactions.

May the cooperating agencies use their expertise to prepare (rather than merely reviewing and commenting on) sections of the Rosemont Copper Project Environmental Impact Statement or the technical analyses on which it is based?

Yes, but only at the invitation of the Forest Service interdisciplinary team leader and after demonstrating that it possesses expertise and resources to complete the task in a timely manner [40 CFR 1501.6(a)].

What discretion does the Forest Service have to determine the scope of a cooperating agency’s special expertise?

The criterion of special expertise emphasizes the relevant capabilities or knowledge that a cooperating agency can contribute to the environmental analysis.  The Forest Service is required to offer cooperating agency status to potentially eligible government entities when preparing an environmental impact statement [40 CFR 1508.26].  It is the Forest Service responsible official’s responsibility, however, to determine which entities possess special expertise relative to the Rosemont Copper Project and the nature of their expertise.

Is knowledge of local “custom and culture” a sufficient basis for including local governments as cooperating agencies under the special expertise criterion?

Yes.  Leaders of local governments are presumed to possess special expertise concerning the history, institutions, and social and economic conditions of their jurisdictions.  This knowledge is often relevant to assessing baseline conditions and potential effects of analysis alternatives.

How should the criterion of special expertise be applied to tribes?

Because tribes have culturally distinctive uses and understandings of land and resources, a tribe’s special expertise may be wide-ranging.  Some of the topics on which tribes provide comment may be similar to those expressed by local governments, such as the effects of a proposed planning decision on tribal employment and income.  Other information and advice may be grounded in culturally specific knowledge, such as the need for access to ceremonial places or the medicinal value of certain plant species.   Sharing tribal knowledge of “custom and culture” through the cooperating agency role may create special challenges in managing information appropriately.

Does inviting a tribe’s participation as a cooperating agency satisfy the Forest Service’s obligation to consult on a government-to-government basis?

No.  Consultation involves a formal effort to obtain the advice or opinion of another agency as required by statute or regulation.  This responsibility is particularly important in the Forest Service’s government-to-government relationship with tribes.  Once formal consultation has been initiated, tribal officials may decide to use the cooperating agency role as a convenient way to communicate their views or contribute their expertise, but this is at the tribe’s option, not the Forest Service’s.

Will the Forest Service compensate cooperating agencies for their participation in development of the Rosemont Copper Project Environmental Impact Statement?

No.  Cooperating agencies normally cover the costs of their own participation, including salary, travel and other expenses [40 CFR 1501.6(b)(5)].  

Under what circumstances may the cooperating agency relationship be terminated?

The cooperating agency relationship is not primarily a forum for advocacy.  If the Forest Service and one or more of its cooperating agency partners find that they cannot work together toward a common goal, and efforts at dispute resolution have been unsuccessful, it is appropriate to terminate the cooperating agency relationship. 

Factors identified by the Council on Environmental Quality as suggesting the need to consider termination include a cooperating agency’s unwillingness to accept the Forest Service’s key decisions as lead agency; deliberately violating key procedural agreements (such as the restriction of pre-decisional documents); and deliberately misrepresenting the environmental impact statement process or its findings.

Council on Environmental Quality Factors Supporting Termination of Cooperating Agency Relationships:

• The cooperating agency cannot accept the lead agency’s final decision-making authority regarding the scope of the analysis, including authority to define the purpose and need for the proposed action.
• The cooperating agency is not able or willing to provide the data and rationale underlying its analyses or assessment of alternatives.
• The cooperating agency releases predecisional information (including working drafts) in a manner that undermines the agreement to work cooperatively before publishing draft or final analyses.
• The cooperating agency consistently misrepresents the process or the findings presented in the analysis and documentation.

This list of factors is not exhaustive.  The Memorandum of Understanding established between the Forest Service and each Rosemont Copper Project cooperating agency includes provisions for termination, as well as other ground rules, such as procedures for dispute resolution.

Is disagreement over substantive matters raised in the environmental study process a valid basis for terminating the cooperating agency relationship?

No.  While the Forest Service remains the decision maker for matters within its jurisdiction, the cooperating agencies are not required to concur in all findings (such as the effects anticipated from a particular alternative).  Working through disagreements within the environmental analysis effort often results in stronger, better-justified findings and decisions.  If disagreements cannot be resolved, the dissenting agency’s view may be documented in the environmental impact statement or its underlying Administrative Record.

May the Forest Service share predecisional documents with cooperating agencies whose actions are governed by the Arizona Public Records Law requirements?

Yes.  In the environmental study process, the main reason to keep predecisional material from public view is to encourage candid discussion among all members of the environmental study team, including the cooperating agencies, the Forest Service interdisciplinary team, the Forest Service’s NEPA contractor, and the proponent (Rosemont Copper Company and its subcontractors).  For this reason, each cooperating agency’s Memorandum of Understanding with the Forest Service contains a section regarding information management.

The information management section includes the agreed upon limitations on the distribution and sharing of pre-decisional, draft, and deliberative materials and products developed for the Rosemont Copper Project.  The Forest Service has stated its intent to provide as much transparency in the Rosemont Copper Project environmental analysis process as is prudent within the bounds of ensuring deliberative space for the decision maker.  To that end, the agency has committed to share publicly available products and materials on its www.RosemontEIS.us website as soon as the materials are available for release to cooperating agencies and the public.  Materials and products that are constrained from release by other factors, such as a state public records requirements or the need to protect the confidentiality of proprietary, trademark, contractual, or statutorily restricted information may be retained by the Forest Service without release as provided for in the Freedom of Information Act or other agency requirements. 

Are documents provided by the cooperating agencies subject to disclosure under the Freedom of Information Act (FOIA, 5 U.S.C. 552)?

In most cases, no.  The Freedom of Information Act (FOIA) exempts from release documents involving “inter-agency or intra-agency memorandums or letters, which would not be available by law to a party other than an agency in litigation with the agency.”  (FOIA exemption 5, 5 U.S.C. 552(b)(5)).  As lead federal agency, the Forest Service could assert this exemption to protect from disclosure those documents prepared by cooperating agencies that contributed to the development of the Rosemont Copper Project Environmental Impact Statement.  Such documents satisfy both requirements of exemption 5: (1) they are predecisional and (2) they are part of the Forest Service’s deliberative process.  Note that communications from a cooperating agency may not qualify as exempt from release under FOIA exemption 5 where that agency is advancing a competitive position that would be detrimental to another party.

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Limitations on FOIA Exemption 5

In some circumstances, [FOIA exemption 5] may also apply to documents generated outside of an agency.  Documents prepared by outside consultants at the request of the agency and recommendations or advice from Congress or the States can be protected if those documents played a role in the agency’s deliberative process and the outside parties are not advocating their own interests in seeking a Government benefit at the expense of others.  Note also that the release of a document by a cooperating agency may be considered a waiver of the lead federal agency’s deliberative process privilege, thus precluding withholding documents under FOIA exemption 5.

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Are meetings between the Forest Service and cooperating agencies subject to the requirements of the Federal Advisory Committee Act (FACA, 5 U.S.C.A. App. 2)?

Normally, no.  The Federal Advisory Committee Act (FACA) applies whenever a federal agency official establishes, manages, or controls a committee, board, or similar group for the purpose of obtaining consensus advice or recommendations on issues or policies within the agency official’s responsibility.  Meetings among representatives of governmental entities, however, are exempt from the requirements of FACA when they involve intergovernmental activities associated with managing or implementing federal programs (2 U.S.C. 1534(b)) [2].  This is a broad exemption.  Effectively, any meeting supporting the Forest Service’s project-level activities would be exempt if the cooperating agencies or representatives of other government entities were providing information, guidance, or analysis related to their responsibilities or expertise.

Does participation as a cooperating agency prevent that agency from appealing the Forest Service’s the Record of Decision?

No.  A cooperating agency may appeal the Forest Service’s Record of Decision as long as it meets the requirements of Forest Service appeal procedures.  By becoming a cooperating agency, a government entity does not lose rights otherwise available to it, including the right to appeal the Forest Service’s Record of Decision.