Hammers, Carrots, and Olive Branches

The Ninth Circuit En Banc

This post is in response to Sharon’s recent writing about the role of litigation in federal lands management. 

Though I sometimes disagree with Sharon’s framing of issues and assessment of things, I appreciate her willingness to tackle tough issues.  But if we are going to take on such important questions, I’d like to help define the so-called “litigation problem.”  A few years ago I tried to organize my thoughts about the topic.  Here is the result, a rather long-winded and excessive essay/commentary (Nie_regulatory_enforcement in PDF)

 Here is the abstract:

This article analyzes the role of prescriptive regulation and citizen-suit litigation (regulatory enforcement) in natural resource conservation in the U.S.A.  It first briefly explains why the judiciary is so involved in resource management and why litigation is so often used as a conservation tool.  It then summarizes the extent to which regulatory enforcement is being threatened and/or undermined by Congress, the executive branch, and other interests.  The analysis shows how regulatory enforcement often facilitates the use of less adversarial conservation strategies and that there are important synergies between them.  Regulatory interactions with collaborative conservation, land and resource acquisitions/easements, and adaptive ecosystem management are analyzed. 


That is more boring than I remember, so here are a few comments made in the essay that might be of relevance to our readers:

Regulatory enforcement often facilitates the use of other, less adversarial, conservation strategies and shows that there are important synergies between them.  In many cases, a sort of “co-evolution” is apparent, with regulation and litigation playing an important role in the development and leveraging of other strategies. 

The most important lesson is that conservation tools are interconnected in significant ways, and when regulatory enforcement is weakened, so too are a host of less adversarial approaches to environmental protection.  Any political juxtaposition of regulatory and “non-regulatory” policy approaches should be viewed most skeptically.        

While the use of litigation by conservationists has been widely criticized and publicized, we should also recognize its widespread use by other interests.  Industry, commodity, and user-groups have initiated litigation over the 2001 roadless rule, snowmobiles in Yellowstone National Park, forest planning regulations, motorized access to multiple use lands, and dozens of other high-profile cases.  For further evidence, consider the wise use movement’s legal arm, the Mountain States Legal Foundation (www.mountainstateslegal.org ), which publicizes a “litigation of the month” section on its webpage.  The private property rights-based takings movement provides another example, as this political agenda has been purposefully advanced via constitutional litigation. 

The “policy story” of environmental obstructionism is being told by numerous actors, with the remedy being as simple as the narrative: to either remove, weaken, and/or undermine environmental regulations.

And a few comments regarding the role of litigation vis-a-vis more collaborative approaches: 

The following analysis shows that while some exaggerate its virtues, the more serious studies of collaboration show why it is better to view it as supplementary to regulatory enforcement, and is not an adequate replacement.  I take it a step further and argue that the weakening of regulatory enforcement will potentially undermine the usefulness and spread of collaboration in the future. 

For all of the benefits collaboration can produce, it is imperative we view the tool in its appropriate context.  In many respects, the hammer of environmental laws, and the groups willing to enforce them, have created the conditions necessary for collaboration to emerge as a viable governing strategy.  Citizen suits can trigger negotiations that wouldn’t otherwise get started.  And would an interest be at the table if not for some particular regulation leveling the playing field? 

The Articles goes on to explore the role of litigation in leveraging other strategies like land acquisition and adaptive ecosystem management. 

And so I’ll end with this idea, as articulated by Judge Skelly Wright in the NEPA-empowering Calvert Cliffs decision, the judicial role is to ensure that the promise of legislation becomes reality:

Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.

8 thoughts on “Hammers, Carrots, and Olive Branches”

  1. Thanks for this, Martin! I may be slow in responding but it’s only because I am busy having experiential learning on this topic and work. I think that there are many facets of “litigation as described in academia” and “litigation as lived experience” that differ; and we will mutually benefit from exploring these nooks and crannies.

    I will look at your entire essay over the weekend, but in response to one of your your points.

    “While the use of litigation by conservationists has been widely criticized and publicized, we should also recognize its widespread use by other interests. Industry, commodity, and user-groups have initiated litigation over the 2001 roadless rule, snowmobiles in Yellowstone National Park, forest planning regulations, motorized access to multiple use lands, and dozens of other high-profile cases.”

    Now it’s hard for me to keep track of cases I deal with in my corner of the world, but when I look at my current plate, I see conservationists 100%, others 0%. What I notice about the list you have is that those are high profile cases- while the ones I deal with are, for the most part, more the bread and butter, daily kinds of projects. So if someone working in litigation or a person on a forest notices that their cases are mostly environmental groups, they may be accurate. That is the day to day lived experience of many.

    Here is a quote from Judge Matsch:

    The extraction of non-renewable resources is an anathema to many in our society. Gas production is the antithesis of environmental protection. The national policies expressed in NEPA and in energy legislation are in direct conflict. The agencies are confronted with the dilemma that they cannot meet both goals. They must attempt to achieve a balance between them that is a reasonable accommodation between harms done to either of them.

    Yet agencies are held to conflicting laws..this Judge seems to be saying that the “important legislative purposes” are sometimes not so clear- in fact, in the eye of the beholder.

  2. Judge Matsch does not say that the laws themselves are in conflict; he says that the “national policies” in NEPA and the energy laws conflict. It is a distinction with a difference. NEPA encourages environmental protection, but regulates only the process used to make decisions. NEPA does not require any particular substantive outcome. Thus NEPA does not conflict with laws that mandate a substantive result.

    The oil and gas leasing law does not require that any particular lease be granted. BLM is authorized, but not required, to issue oil and gas leases on federal land.

    Years ago, in response to OGC griping about “conflicting laws,” I issued a public challenge to identify two Forest Service-related laws that are in direct conflict, i.e., following one necessarily requires violating the other. No one has yet come forward with such an example.

    The Game’s afoot! Six-pack to the winner from an Oregon micro-brewery. Martin — will you judge the entries?

  3. A Wonkfest Contest! Excellent! Beer! 🙂 It’s probably time to trot out this classic- the 1995 “Conflicting Laws” study. I can’t actually remember what was in it; and have timesheets, Govtrips, and performance evaluations to catch up on- so will leave to others to see whether there are possible candidates in this document.. or other points worthy of a blog entry.

  4. I’m engaged in a Wilderness Act/NHPA matter right now, involving a long-dead squatter’s cabin in a California wilderness (the “Monte Wolfe” cabin).

    The Wilderness Act bars structures. NHPA requires a process before the cabin is removed. The FS is going through that process now. Whether the FS removes the cabin, as required by the Wilderness Act, depends upon the forest supervisor’s spine, not any substantive duty imposed by the NHPA because there is none.

    At least that’s my take. I’ll let Martin make the referee’s call.

  5. No beer for Borrie.

    And being referee must not mean me laying all the groundwork. So I’ll ask for more specificity in the future. But Bill starts us off with a really good one.

    I’m no expert on NHPA, but there are two types of protections provided by the law, one substantive and one NEPA-like procedural (section 106 which is basically a required consultation process). Properties designated as National Historic Landmarks receive greater substantive protection (e.g., Bighorn Medicine Wheel in Wyoming’s Bighorn National Forest).

    But even section 110 protection is much less prescriptive than the relevant provisions in TWA: Before approving actions that would affect a landmark, Sec. 110 requires that the responsible federal agency “shall, TO THE MAXIMUM EXTENT POSSIBLE, undertake such planning and actions as may be necessary to MINIMIZE HARM to such landmark.” 16 USC 470h-2(f)(2006).

    So as umpire, I’m saying there is sufficient discretion here and no inherent conflict between the two laws.

    P.S. Aren’t there also historical properties/districts as protected by NHPA that are also federal wilderness? I think so, and one example might be on the Six Rivers. I only know this because it’s where the Lyng sacred lands case unfolded–and much of the area (which was part of the Helkau Historic District) was subsequently designated as wilderness. And again demonstrating the discretion provided by the Act, the NHPA designation did not stop the USFS from its plan to construct a road in this sacred area.

  6. Committed students of the Wilderness Act will note that the Act’s ban on structures is not absolute. Structures are barred, “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act.” Some agency managers thought (and some still think) that this administrative allowance should permit historic structures because “wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.”

    The courts read this purpose much more narrowly, i.e., “the reference is to the historical values of the natural environment, not to the structures placed there by man.” High Sierra Hikers Ass’n v. United States Forest Serv., 436 F. Supp. 2d 1117, 1135 (E.D. Cal. 2006).

    The Wilderness Act’s prohibitions are also “subject to existing private rights,” which, among other things, resolve potential conflicts with ANILCA (which provides private in-holdings with a qualified right-of-way over federal land).


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