BUDD-FALEN
LAW OFFICES, P.C.
Cheyenne, Wyoming 82003
October 28, 2003
Mike Coffman
LEARN
1229 Broadway, Suite 313
Bangor, ME 04401
Re: Home Rule
Dear Mike:
In regard to your question of home rule, perhaps a short explanation of the general concept of “home rule” would help you in working with the various counties and states. “Home rule” refers to the general authority of a county to act outside the directed powers given to it by a state. Think about the 50 states and the authority given them by the 10th Amendment to the U.S. Constitution. Under the 10th Amendment, the various states can pass laws or regulations regarding any subject not specifically reserved to the federal government by the U.S. Constitution. Although the term is not used in this way, by virtue of the 10th Amendment, the states have “home rule” in that they can regulate or govern in any area that is not specifically reserved to the federal government’s authority.
In contrast, in numerous states, counties are creatures of the state in which they were created and can only pass those laws or regulate in those areas specifically allowed by the state constitution or the state legislature. In other words, if the state constitution does not have a type of “10th Amendment” relating to county authority, those counties can only pass regulations or ordinances that are specifically allowed by the state constitution. All of this power varies by state. In Wyoming, for example, local towns have “home rule” authority and can regulate in any area, whereas counties in Wyoming do not have “home rule” and can only regulate in areas directed by the state legislature or the Wyoming Constitution.
What this means for LEARN, however, is really nothing. Thus, I would suggest two responses to “home rule” questions. First, the concept of “home rule,” while it may be helpful to a county, does not stop the county from participating in federal agency decision-making processes. For example, if a state constitution prohibits a county from passing ordinances regarding certain subjects or only allows ordinances on certain topics, the county can still participate in federal decision-making processes as allowed by the National Environmental Policy Act (“NEPA”). It can create a citizen committee, gathering data on custom, culture, economics, and the environment and presenting that information (not an ordinance) to the federal agency. Because the county is not “passing an ordinance,” having home rule is irrelevant. The only thing the lack of “home rule’ would prohibit is a county passing a Walla Walla County, Washington-type ordinance. However, the county can still participate and receive cooperating agency status by the federal agency under NEPA even without “home rule.”
Second, I have never seen a state that does not allow local governments to participate in local land use planning. Even under the most stringent land use planning statutes, such as in Washington State, state laws do not prohibit local governments from using their planning authority to participate in federal land use planning processes.
For LEARN, while I would not dismiss questions of “home rule” when they occur, I do think that in a lot of cases the claim that the state does not allow “home rule” is an excuse not to get involved because they do not understand LEARN and its power to help them. To respond, I recommend that you ask whether the county has any kind of land use planning authority. Second, while the county may not be able to pass a Walla Walla County-type ordinance, it can still protect their citizens under NEPA.
If you have further questions, or if there are state requirements that I can review for you, please let me know.
Sincerely,
Karen Budd-Falen
BUDD-FALEN LAW OFFICES, L.L.C.
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