collaboration and public involvement

Beaverhead Deerlodge- Another “Who’s At the Table?”

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Here’s a link to a newer lawsuit on the Beaverhead Deerlodge plan.

County Commissioner Mike McGinley said the Forest Service’s plan included wilderness areas that were never before considered and don’t meet the criteria for the highest level of land protection under federal law. And he said the plan, which guides management of the 3.3-million acre forest, was crafted after closed-door meetings between then Beaverhead Forest Supervisor Bruce Ramsey and the partnership members.

It seems like once again the issue is who was at the table. Is this an argument for formal advisory committees which include governments? Where should cooperating agencies and others fit? I hope that folks in Montana will share their insights.

Who’s at the Table and Who Decides?

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Observing the stories in the press on our favorite topics over the past two weeks, I found a common set of questions that I hope can illuminate the controversies. ”Who’s at the Table and Who Decides?” There is another thread, in some of these stories, of the appropriate role of state and local governments.

In this post, we’ll examine the settlement of case against four forest plans (82 Rule) in southern California.

Here’s the link to the below quote. http://lakeconews.com/content/view/17531/931/
Here’s the link to another piece on the settlement on this blog.

SAN FRANCISCO – Attorney General Edmund G. Brown Jr. has announced a settlement that requires the U.S. Forest Service to reconsider its plans regarding wilderness lands in four national forests, including the Los Padres, home of the endangered California condor. “With this settlement, the state of California will now play an active role along with the Forest Service in determining which areas of Southern California forests will be preserved as wilderness,” Brown said. The settlement resolves a lawsuit brought by Brown and various state agencies and environmental groups against the U.S. Forest Service for its plans to allow roads to be built through hundreds of thousands of acres of wild lands in the Los Padres, Angeles, Cleveland and San Bernardino national forests.

Who’s at the table? The plaintiffs (listed in the agreement) and the Forest Service and DOJ.
Who decides? The Department of Justice and the Forest Service and the plaintiffs, which in this case includes the State of California.

It appears to me that the State and groups that used the tactic of litigation moved the decisions in forest plans from being an open process, where the FS decides, to a not- open process where it is not so clear who decides. If land management allocations are ultimately to be made in the courts, because plans are so complex that it is difficult to do one perfectly- especially when people are paid to find flaws- perhaps it tells us that more conflict resolution, and not more analysis is what is needed. Again, I think it’s OK to use that as a tactic, but using that as a tactic has potential negative ramifications, from the perspective of openness and transparency, that need to be acknowledged.

It looks like the settlement imposes roadless-rule like requirements or, in other words, establishes a policy for federal lands in part of the State. We have had the discussion before on this blog about whether settlement agreements actually set policy. This seems to be an example of that.

Transparency and Open Government: A Guest Post by Jim Fenwood

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His first day in office President Obama issued his Memorandum on Transparency and Open Governent . He explained the need for the memorandum as follows:

Our commitment to openness means more than simply informing the American people about how decisions are made. It means recognizing that government does not have all the answers and that public officials need to draw on what citizens know. And, that’s why as of today I’m directing members of my Administration to find new ways of tapping the knowledge and experience of ordinary Americans.

To further these ends, the General Services Administration (GSA) is soliciting comments through its Open Government Initiative wiki. The GSA describes the project as:

“

. . .a concept for next generation citizen consultation, namely a government-wide software tool and process to elicit expert public participation (working title “ExpertNet”). ExpertNet could:

1. Enable government officials to circulate notice of opportunities to participate in public consultations to members of the public with expertise on a topic.
2. Provide those volunteer experts with a mechanism to provide useful, relevant, and manageable feedback back to government officials.

Questions:

Will this be the new model for public participation in rule-making?

How should it supplement or relate to the NEPA process?

Jim Fenwood is a retired wildlife biologist living in Atlanta, GA. An eternal optimist, he believes in world peace, Ivory-billed woodpeckers, and Planning Rule revisions.

Hammers, Carrots, and Olive Branches

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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.

Wanted: Forest Advisory Board

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this photo is of the Black Hills Forest Advisory Board

In this Arizona Daily Sun editorial piece some interesting points are raised about the advantages of an advisory board or group including:

TOP-DOWN AFFAIR

But the visioning process for the forest remains a very top-down, internal affair, just the opposite of what the 2009 conferees envisioned. Forest planners develop maps and draft statements that are presented for comment at irregular open houses, revisions are made, and more comments are solicited. At no time are planners taking their work before a representative standing body of stakeholders, then doing the heavy-lifting needed to achieve consensus in such a diverse group.

Granted, they are under no legal obligation to do the latter. And it’s not their fault that the 2009 conferees have lost the momentum of 21 months ago behind a regional commission.

But consulting on an ad hoc basis with various user groups is simply not going to generate broad-based buy-in to a vision for sustainable ecological, social and economic conditions in the forest, much less for specific plans for off-road travel, Red Rock fees, campfire bans or snowplay. It’s no wonder the Coconino seems to lurch from one public controversy to another — officials have not worked to develop a grassroots consensus on the forest’s mission that would give them cover behind a united community front when the inevitable disagreements arise over specific policies and programs.

I think it’s interesting that both this proposed group and the existing Black Hills Advisory Board, which we have discussed before here, are not just about planning. It’s about the management of the forest- the whole enchilada- for which there seems to be a need.

Adaptive Co-Management- Exploring Our Future

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Here are some links contributed by Lynn Jungwirth and her thoughts…

This, I think, is where we are going with forest planning efforts……. I think this is what TNC is doing with their Fire Learning Networks….creating learning networks. The Berkes article contrasts decision making collaborative with learning collaborative and puts them in the context of adaptive management….so now, the term is “adaptive co-management”. I think the jig is up in terms of thinking that there are natural systems and social systems……7 billion people puts us at eco-socio systems…..and these guys are trying to figure out what is emerging in terms of “bright spots” of success for that…

Here are the papers she sent Hill.etal_2010_adaptive.co-management_Australia, Cundill.and.Fabricius_2010_adaptive.monitoring and Berkes_2009_adaptive.co-management.

Clearly landscape scale collaboration is the way to go.. as so many currently funded initiatives in the federal agencies would attest. They are almost too numerous to list.

It may take a while to read the above papers for all of us busy people, but I’d be interested in hearing from readers in the next few weeks.. which ideas do you think are the most key to have in forest planning (or in a forest planning rule) and why?

Collaboration and Fire Impacts in Northern Arizona- from Derek Weidensee

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Derek wrote in to say:

Just wanted to share a couple links to a couple news stories in today’s “Arizona Daily” in Flagstaff AZ. The first is a flood resulting from the Schultz fire of a couple weeks ago. The second is an OP-ED by a member of the Greater Flagstaff forest partnership voicing his frustration at the lack of “collaboration” between moderate enviros (GFFP) and more radical enviros at the Center for Biological Diversity. The CBD appealed and stalled a collaborative effort between the GFFP and the USFS to thin 12,000 acres that covered the Schultz fire. It doesn’t have much to do with planning-but it does have a lot to do with the frustrations of collaborative planning. And I think its represents a schism that is developing, and may develop much more in the future, between moderate greens and radical greens.

Ortenburg on Collaboration and the Red Lodge Experience

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Here’s a link to a piece by Art Ortenburg on collaborative conservation in the Huffington Post.

The current grass-roots disaffection with federal involvement in land use is undeniable. Utah would like to float off and control all of its federal lands. “Return them to the people” is the slogan. That slogan is being heard repeatedly in the west. This is the time for a major push on the part of the administration to reawaken the collaborative spirit. Instead it is in the process of possibly reversing the “roadless area” principles of the Clinton administration so that new roads on public lands will be available for mining.
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P.S. I don’t know what he’s talking about with regard to new roads on roadless public lands and mining.

Comments on the Planning Rule Process from Mark Squillace

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Mark Squillace, Director of the Natural Resources Law Center at University of Colorado Law School, wrote a piece on the Red Lodge Clearing House blog..here. Some quotes.

First, the Forest Service deserves substantial credit for initiating this remarkable process. The agency wisely chose to hire an outside professional consultant (Meridian Institute) to organize and facilitate public involvement and the consultant performed admirably. Moreover, recognizing that not everyone has the time, inclination, or interest to participate in workshops, the Forest Service has supplemented this more conventional process, with a web page, blog, live web casts of the workshops, and other electronic resources, in an effort to engage a broader audience.

Second, if the first step to addressing a problem is admitting you have one, then the Forest Service seems well on its way to addressing its problem with planning. While the workshops certainly did not dwell directly on past failures, the unspoken premise for much of the discussion was that forest planning is broken. Agency officials seem to get that. Despite several substantial efforts to develop a workable planning process, going back to at least the early 1980’s, land and resource management plans, as they are called, take far too long to prepare and are too often the subject of appeals and litigation. Moreover, they tend to suck most of the energy (and financial resources) out of the agency, with the result that not much is left to adequately assess project level decisions and to engage in post planning monitoring of forest conditions.

Third, the Forest Service seems genuinely committed to engaging the public and hearing how they might improve the planning process. Numerous agency officials at all levels actively participated in both the regional and national workshops and they genuinely seemed grateful for the public’s sometimes disparate ideas for designing a smarter approach to forest planning.

Fourth, the level of dialogue among participants was, on the whole, quite sophisticated, but it was also welcoming toward the views of those with less direct experience in forest planning. Kudos once again to the facilitator, Meridian Institute, for attracting and convening a diverse group, and for structuring an efficient and effective program for engaging participants with varied backgrounds in the task at hand.

I have to say that Meridian did our regional roundtable in Denver as well and were equally excellent.

Two other things: First, on the Red Lodge blog piece it is mentioned that Mark has a piece on the FS blog called “Rethinking Forest Planning”. I tried to find it but couldn’t; the search on his name didn’t work for me.. if someone else can find it please let me know and I will post the link.

Second, in the Red House blog piece a comment referred to “Hidden Gems.” For the non-Coloradans, that is a wilderness proposal.