So we want a simplier, more adaptive management structure for forest planning and implementation? This won’t work until we first address the questions of public accountability and success in court.
In his law review article “Regulation by Adaptive Management – Is it Possible?”, Florida State Law Professor J.B. Ruhl argues that environmental regulation (which can also be applied to forest planning) needs to move away from “prescriptive regulation” to adaptive management, but there are barriers.
If we were to apply an adaptive management approach in forest planning, the Forest Service needs to consider the battles that Ruhl says will come from three fronts: legislative, the public, and the courts. He gives a case study of a Fish and Wildlife Service adaptive management approach to the Endangered Species Act. He observes that over time, agencies find that interest groups and the courts peck away at adaptive agency behavior, and that under conventional administrative law, agencies adopt adaptive management at their own peril.
Ruhl suggests a model of regulation (which we could embed in our forest plans) that sets boundaries that can be monitored and enforced in courts. There are two elements that we could put into plans. First, a decision shouldn’t be altered too soon after being made – what Ruhl calls “volatility.” A radical departure made quickly after the initial position suggests that the agency’s operational model is faulty, its monitoring is defective, or something else is fundamentally flawed. The other problem is the concern that an accumulation of small adjustments over time may put the agency too far from its initial position – what Ruhl calls “drift.” So a forest plan could establish the boundary of acceptable volatility (narrow at first which can broaden over time), and a broader boundary of acceptable drift. What would such a plan look like?