In order to be heard, the public must understand how federal agencies make decisions. The other side already understands this, and makes use of its knowledge. We have to catch up.

Legislative Requirements

Two of the major pieces of legislation that control Public Land use are the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). They operate differently.

  1. NEPA requires coordination, a process requiring the federal government to consider local government plans and concerns (but only provided local government representatives or entities demand it).

  2. ESA does not require coordination. It requires consultation, a process requiring federal agencies to cooperate with each other.

The Decision Making Process

When NEPA and ESA are both involved in a project, as is often the case, the overall decision-making process works something like this:

Phase I

  1. The requesting agency notifies appropriate regulatory agencies of a planned project at the very outset. The “requesting” agency is the one that oversees a project. “Regulatory agencies” are those than interpret and control the enforcement of related legislation, plus their own internally-generated regulations.

  2. The requesting agency engages in a set of communications and negotiations with the relevant regulatory agencies about the project. The decisions made shape what will be considered in subsequent phases.

  3. This phase can take months or even years.

  4. Unless demanded, this process is completely invisible to the public and to local agencies, yet important decisions are made that shape the project. Options may be eliminated that the public knows nothing about.

Phase II

  1. Long after the agencies have begun consultation and shaped the project, NEPA’s coordination requirement kicks in. Local governments are brought into the decision-making process (but only if they demand it).

Phase III

  1. Unless the public is pro-active, public input is sought only at the tail end of the process, typically in the final weeks of a process that has been going on for years. By this time, it is typically too late, perhaps intentionally so. The project has already been shaped.

  2. Using a football analogy, the public is put in a defensive position, desperately trying from its own 95-year line to prevent an agency touchdown.

  3. Public input meetings are increasingly managed by professionals trained in delphi techniques to produce the appearance of public support for the project, regardless of the public’s actual feelings.

Phase IV

  1. The requesting agency’s “line officer” makes the final determinations and signs off on the project. The name and signature of the line officer appear on the final decision-making document.

Agency Priorities

  1. The line officer who violates NEPA’s coordination requirements gets his or her hand slapped.

  2. The line officer who violates ESA’s consultation requirements can face criminal, legal defense expenses, and fines or damages that can amount to tens of thousands of dollars. These are paid by the individual line officer personally, not the agency.

  3. If you were a line officer, which would influence your decisions most: NEPA coordination, public input, or ESA consultation?


The public can, and must demand to be engaged in a project’s decision-making from the very start. The environmental organizations already understand this and participate in all phases of the process. We have do the same.

  1. Ray Haupt

  2. Ray is a retired US Forest Service District Ranger with 33 years of service. He is a registered professional forester and currently teaches two days a week. He provides an inside look into EAJA.

  3. hear: Ray explain the federal agency decision-making process, and the essential need for the public to become informed and engage.

  4. email: Ray Haupt

Defend Rural America, The Constitutional County, Constitutional County, and
Constitutional Counties are trademarks of Kirk F. MacKenzie.

Kirk MacKenzie


Defend Rural AmericaTM


Skype: kirkmack1




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