Over the holidays I saw this blog post on a letter send to the FS about who is at the table during cooperating agency meetings on the for the Rosemont Mine project. The letter suggests a FACA committee is necessary if non-governmental folks are invited to provide information.
Here is the letter. Here’s a quote.
It may be useful for you to know that the Bureau of Land Management (BLM) has promulgated agency-wide guidance specifically on this point. The guidance states that normally meetings between BLM and cooperating agencies do not trigger FACA because of the intergovernmental exemption. It explains that the exemption applies “to meetings between federal
officials and elected state, local, or tribal government officials or their designated employees with authority to act on their behalf.” It also addresses the question of whether a cooperating agency may be represented by a contractor working at such a meeting. BLM’s answer in this respect is very instructive:
”The cooperating agency relationship is intended to facilitate the exchange of views and expertise among BLM managers and staff and other governmental officials and staff. For these reasons, the BLM discourages the use of contractors to represent the cooperating agencies. . . .Contractors should not represent the cooperating agencies in meetings where advice or recommendations are sought.”
The guidance goes on to explain that given limited staff and time demands, a cooperating agency might be represented by a contractor if the meeting was used solely for the purpose of exchanging information. . . . “In practice, however, the distinction between exchanging information and seeking recommendations may not be clear.” “For these reasons, the BLM discourages the use of contractors to represent the cooperating agencies.” Please note that this guidance is directed
towards contractors representing other governmental entities. The guidance never suggests that it is ever appropriate to include an applicant or an applicant’s contractors on a regular basis in cooperating agency meetings.
Here’s a link to the 2005 BLM Deskguide to Cooperating Agency Relationships.
Some of you may remember this discussion on the openness of BLM cooperating agency meetings in Wyoming.
Finally, this story from earlier in December on “Who’s at the table” from Uintah County ; plaintiffs, yes, cooperating agencies, no.