conflict resolution

Voice in Democracy: When Anonymity Helps

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As we are seeing these days in the Middle East and Africa, even Wisconsin, democracy is never easy—whether to initiate or to keep. What we know is that we cannot maintain a democratic form of government without “voice.” After all, democracies are “temples of talk.” Yet, many times it proves too threatening to express opinions, or even to interject facts, into public discussions. Discussions sometimes threaten work, family, or community relations, yet without discussions, none of these institutions can long survive. In many situations, only the few dare voice opposition to either the status quo or to proposed change. But these days it is getting easier to be heard without some of the threat that has traditionally attached to voice. We are seeing an upwelling of “anonymity” as a form of voice.

I follow a bunch of blogs in the economics and finance arena. Believe me, there are a bunch of these. As you might guess, given recent financial shenanigans events, there are very active conversations in these blogs, and also in mainstream periodicals—that themselves now embed blogs. Some who comment and some who blog remain anonymous. Why? Because of perceived threats, sometimes very real threats. Anonymity allows a particular voice that would be disallowed if people were to “post” or comment under their real names.

Here are two examples. One noted financial blogger, The Epicurean Dealmaker, posts as TED (an acronym). TED is widely viewed as a sage in the arena of Wall Street financial deal-making. TED claims to be a mid- to higher-level employee of a Wall Street firm. He (or she? Not likely!) has been very critical of the culture wherein he makes a fine living. And his posts, and guarded/shielded interviews, have helped to unravel some of the mysteries of this arcane world. TED is unabashed. He even challenges people to find out who he is. He is so sure of himself that he believes that he will not be “outed.”

Then there is Maxine Udall (girl economist), who spent a few years blogging and attracted a following. Turns out that “Maxine” was not her real name. Unfortunately, the real author passed away suddenly a few weeks ago. She was “outed” after her untimely passing. Most everybody had previously thought Maxine was a savvy graduate student. Turns out that she was a professor. Had she been blogging under her real name, her voice would have been less edgy.

If you want to comment with anonymity, here’s what you can do. First create a fictitious name/email address, then begin commenting. Or, particularly if you want to carry conversation “off line” set up a real email, like TED did, with a “handle”, not your real name. If you feel you have more to say, start an anonymous blog—it is very easy.

We need more “voice” in the public lands arena. I don’t understand why there are not more blogs on matters we discuss here. Is it just timidity? Is it that there is so little passion among employees and public lands watchers? Really? Likely not. So what else is going on?

Nice Article on 4FRI

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We’ll probably all be interested in following as 4FRI unfolds.

This is the most detailed story I’ve seen..nice work, Pete Aleshire!

T

he threat prompted timber interests and environmentalists together with forest researchers from Northern Arizona University to forge an agreement on the need to use a reinvented timber industry to thin some 2.4 million acres of forest. Instead of asking taxpayers to shell out $500 to $1,000 per acre for hand thinning, backers hope the timber mills can essentially cover the cost of the thinning by selling the small trees they harvest. That would require convincing the timber mills to invest millions in chipboard and particle board manufacturing operations plus a network of power plants that can burn the wood scraps.

A study by economists from NAU predicted that long-term contracts feeding wood steadily to a network of mills and power plants would generate about 1,000 jobs annually in the region and save the taxpayers the $1.2 billion cost of hand thinning such an expanse.

“If an effort of this scale is going to work anywhere, it’s going to work here,” said Ethan Aumack, Director of Restoration Programs for the Grand Canyon Trust.

“From the science to the social license to the wood utilization capacity, we have all the necessary pieces in place and now it’s time to move them in unison forward.”

And

The timber interests want 20- and 30-year contracts to guarantee a sufficient supply of wood to produce a profit. The conservationist groups want the Forest Service to accept what amounts to a ban on cutting the largest trees — generally those more than 16 inches in diameter.

The Ranchers and the Feds Should Be Friends

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The National Grasslands don’t often get the limelight in our Forest Service discussions. Sometimes I think the filter of the timber wars obscures a vision of our best mutual future. But listen to these words and see if you think they might be relevant to some of our other disputes. Especially the concept- there are no villains here, and a lot of common ground.

This is from an editorial here in the Bismarck Tribune entitled “Forest Service, ranchers need to reach common ground.

Divergent uses and demands upon the national grasslands periodically conflict, but the relationship between the ranchers who lease range and the Forest Service has become adversarial to the point it has crossed over the line of good sense. Huge amounts of time and energy are wasted on the verbal and political conflict. The running disputes between the grazing association and the Forest Service are an obstacle to thoughtful management of the grasslands.

It is not a conflict between a heroic ranching ethic and federal bureaucrats who don’t know one end of a cow from the other. Nor is it a dispute between noble naturalists and ill-educated cowboys more interested in a quick buck from the sales ring than they are in taking care of the grass. The two sides have a great deal in common. As in all things, the black and white issues are really gray, and it’s compounded by a third party – the public, the ultimate landlords.

The needs of the two – ranchers and Forest Service – are not mutually exclusive.

North Dakota’s experience with the Forest Service has been good. Its employees are skilled and dedicated. The ranchers in the Badlands are our fellow citizens. And we appreciate their difficult economic challenges and their role in forging the state’s identity.

It’s in the state’s best interests for ranchers and the Forest Service to develop a plausible working relationship based on mutual respect.

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.

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.

Notes from the Battlefield: Is There a Better Way?

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This post is the beginning of a series on the possibility of turning our public land conflict “swords” into “plowshares.” Outside our natural resource and public lands world, this is generally considered to be a good thing to do. Even though we shed only dollars, piles of documents and snarky words, not blood; we must consider whether our conflict resolution methodologies are optimal- and whether the time and funding we spend fighting could be better spent on the pursuit of “good things” that we can all agree on.

So I would argue that at some spatial scale, we need to establish zones of agreement and a shared vision for our public lands. Right now it is a hodgepodge of seemingly random statutes, regulations and case law done over the past 50 years. It’s easy to blame the Forest Service for this jungle, but we simply make our living looking evading pits and predators and are not responsible for its creation. Getting together with a shared vision seems to happen at the local scale, but at larger scales, not so much. I would be interested in examples that you can share, particularly in larger scale examples.

On the other hand, many people think that appeals and litigation is not the best way of resolving disputes. I think we need to take a clear-eyed look at taking our disputes to court and consider the advantages and disadvantages, as well as creatively look at options for how both conflict resolution, and the use of courts, could be improved.

So let me start with some fundamentals with regard to my opinions on this subject.
First, I like many lawyers, including environmental lawyers, and even personally contribute regularly to an environmental law organization (CIEL). And I think some litigation is necessary, but it is not always the best, nor the most cost-effective, tool for a specific policy making, and/or conflict resolution task. In later posts, I will describe some real-world examples.

Second, nothing humans do is perfect, and Forest Service projects are no exception to that rule. The reasons for this are not always clear; some combination of line officer “discretion” and inertia seem to be factors. Far more common is the project that some like and some don’t like. And what can happen is that it isn’t judged on what it does, but on how it has been documented. Which can, if we are not careful, slowly move our mutual focus from project design to documentation.

Third, as Fred Norbury used to say “appeals and litigation are the Forest Service approach to quality control.” He didn’t mean that that was a desirable approach, just one that had developed and would be difficult to de-entrench. We have jointly built an interdependent, coevolved system with the litigation community (or “frequent filers”, as they are known colloquially). It would require internal as well as external change to reduce the joint burden and expense of this legal-industrial complex.

Fourth, I think that respectfully questioning others can contribute to both sides honing our ideas and thinking, and to being both clearer about, and better at, what we do. For example, although I sometimes disagree with Andy Stahl, I still listen to what he says because he brings a valuable perspective, in my opinion.

We face a great many challenges to public lands in the 21st century and in my opinion, if we improve the way people with different worldviews work together and resolve conflicts in facing those challenges, we will have resilient public lands and be a resilient community in jointly facing a variety of future environmental and economic challenges.