Comment Analysis · Docket FS-2025-0001

FS-2025-0001-457099

Opposes rescissionPosted September 21, 2026 On Regulations.gov

Not scored for substance: the comment does not clear the floor of substantive signal.

Topics

  • Governance Policy Process
    • “USDA certifies that the rescission carries no federalism implications under E.O. 13132”
    • “conflicting state and local laws would be preempted upon publication”
    • “USDA should have run the federalism analysis rather than certifying its way past it”
    • “authority moves from one level of a federal agency to another level of that same agency”
  • Legal Regulatory Framework
    • “Kleppe v. New Mexico, 426 U.S. 529 (1976)”
    • “The Property Clause gives Congress power over federal territory”
    • “States retain the police power over health, safety, and welfare”
    • “A rule that preempts state law is, almost by definition, a rule that affects the relationship between the federal government and the states”

What it names

Law cited
426 U.S. 529E.O. 13132

The comment

USDA frames the rescission as a return of decisionmaking to local officials, but the officials it actually names are forest supervisors and regional foresters, both of whom are Forest Service employees. Essentially, authority moves from one level of a federal agency to another level of that same agency, and no state, county, or tribal government receives anything it did not already have. How this bears on federalism is through the certification itself, because USDA certifies that the rescission carries no federalism implications under E.O. 13132, and then, in the Civil Justice Reform section, states that conflicting state and local laws would be preempted upon publication. A rule that preempts state law is, almost by definition, a rule that affects the relationship between the federal government and the states, which is the precise thing E.O. 13132 directs agencies to analyze. A potential response here is that USDA holds broad authority over these lands no matter what the certification says, and that response is a fair one. The Property Clause gives Congress power over federal territory, and Kleppe v. New Mexico, 426 U.S. 529 (1976), reads that power expansively enough that a direct challenge to USDA's authority would likely fail. But authority and analysis are separate questions, and this comment concerns the second one. States retain the police power over health, safety, and welfare, and that power reaches drinking water systems and land use in the communities sitting downstream of these forests. Given that much of the burden lands on those communities, USDA should have run the federalism analysis rather than certifying its way past it.

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