Consensus decision-making is incompatable with the rule of law-

Obama, Salazar and the Future of America’s Public Lands. Interior Decorating. By Dr. Brian Horejsi. Counterpunch.

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About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides, and he is President of the Western Watersheds Project.

58 Responses to Interior decorating: Obama, Salazar and the Future of America's Public Lands

  1. avatar Mike says:

    Very interesting article there. The author makes a good point about the “dumbing down” and sneak speak which contributes to the weakening of real conservation.

  2. avatar Brian Ertz says:

    i like the point he makes about how collaboration & consensus decision-making approach is too easily used by extractive interests to veto best science management.

  3. avatar kt says:

    It would be interesting to look at a Timeline/Chart of the Landmark pieces of US environmental legislation, then lay out all the efforts (successful and unsuccessful) to weaken and dilute, and where these came from, and who helped bring it about.

    While every other “progressive” issue has made some strides, it has been largely downhill for a very long time for the ESA, Clean Air, Clean Water, FLPMA. For quite a while.

    I see environmentalists participating in collaborative groups on environmental issues as indulging in a kind of exceptionalism/elitism.

    The self-selected (or if you did it Mike Crapo Owyhee Initative style – engraved invitation only) collaborative group decides what is and is not appropriate “management” for the public’s land. And what will be given away to the cattle/logging/mining industry.

    Collaborative groups typically have one or two weak envtl sorts, and then multiple members of Industry in various guises, and some local officials that are always in bed with Industry.

    The environmentalists, their ego massaged and stroked by the collab. group, go back to their computers and send messages about how they are REALLY GETTING SOMETHING from the group (Heh, heh, heh).

    In reality, they are like lambs being led to the slaughter. No way can a typical environmental type compete with Industry.

    When are the Kemmis ‘es of the world, and the Andrus Center pontificators going to be exposed for what they really are?
    Quasi-arms of the Heritage Foundation working to dismantle pubic lands. Interesting to examine where funding for these propagandists comes from. Forest Products and Cow Councils, and green Poseurs.

    If we want to understand any of this, we have to look at what Went Down and has been written about the early days of the Heritage Foundation, the Sagebrush Rebels, etc. And then see that much of that agenda is now agency public lands policy and regulatory chipping away at the landmark envtl laws .

    Progressive envtl folks to expose this, and expose the role of the media, especially newspapers, in the West in promoting the collaboration agenda. And expose the hogwash about “to be a politician in the West, you have to out-do the Republicans and always, always, always like Ken Salazar wear the Big Hat”.

    The Big Hat is NOT a Big Tent. It is symbol of Big Industry, laughing all the way to the bank, laughing all the way to yet another bank loan on the paper cow AUMs on a grazing permit.

  4. avatar Salle says:

    kt,

    Good point and a valid challenge. I wonder how long it would take to assemble that mass of policy and compare it with what can be gathered on the actual individuals who promoted the iron triangulation of the whole mess that it has become.

    I wouldn’t mind helping with that.

    S.

  5. avatar Brian Ertz says:

    kt,

    many times these collaborative/consensus groups are just PR – as a way to bring decisions down but pretend like there was public involvement. if you’ve got an idea that doesn’t conflict with the leasee’s idea – they might put it on the whiteboard – and that’s where it stays.

  6. avatar kt says:

    Salle,

    Here’s a suggestion: Someone set up a site where folks could go to it and plug in Undermining/Gutting.

    Brian,

    Then there is always that sporting feeling that comes when when you as one of the Untouchables/Unwashed show up at one of those collaboration fests, and speak truth to nonsense and industry myths.

    Sometimes that alone causes the happy collaborative group to fizzzzzle out. You mess up their plan. Not only do you keep the “good” envtl group from giving away the farm, you are such an annoyance to the Industry types present that the whole thing gets bogged down and meetings get longer and longer in between … and …

  7. avatar jburnham says:

    I agree with the point that a consensus based approach has the potential to overrun science based decision making, but I don’t see any salvation in a ‘resurgence of democracy’. Yes, get the rid of the heavy hand of industry; but decisions made democratically are just as likely to be based on anything but science. Besides that, won’t democratic decision making eventually have to boil down to compromise and consensus as well?

  8. avatar Rick Hammel says:

    I participated in a collaboration with the BLM a few years ago, attempting to develop a community-based resource management plan. It was a failure. None of the major players would budge. After three years of bickering, we gave up and told the BLM that we could not reach concensus. The BLM says they learned a lot from the process and it would help them to develop a draft RMP. They developed a draft, but the final has not been released after three years.

    So much for the collaboration process.

    Rick

  9. avatar monty says:

    It boils down to the insane human belief that perpetual human growth and greed is practical, or possible, on a finite earth. Our political and religious institutions are utter failures in awakening the majority to this reality. The century we now live in is “the century of limits” and this will become more apparent with each passing decade. We continue to add ever increasing amounts of “human tonnage” to the planet without questioning the ethics of this policy. There is a class of humans who believe that their power rests on ignorance–like clubs for growth– which blinds the majority to the colossal fraud that humans can breed and consume and exhaust our way to a better life. Folks who believe this mythology should visit China or India. Public lands–that are generally the most unproductive lands in this country–will not satisfy our greed.

  10. avatar JB says:

    Sorry to come to this conversation late…

    Collaborative and consensus decision-making approaches (which are actually different, despite the authors attempt to lump them together) have their problems, but the author’s suggestion that they are part of a right-wing conspiracy is beyond absurd.

    Collaborative (or discourse-based) decision-making approaches are designed to involve multiple, diverse parties (often with divergent views) in the decision process. They arose in the 1980s in response to laws like the National Forest Management Act and NEPA which required public participation in the management process.

    Ironically, they were instituted to address the problem of top-down, NON-DEMOCRATIC decision-making that had been the hallmark of the Forest Service and other agencies for decades. On the FS side, discourse-based approaches came about in response to the host of law suits that followed the initial round of Forest planning in the late 1970s and early 1980s. These processes actually gave a voice to environmentalists and local recreationists who (before NEPA/NMFA) were often totally excluded from decisions, which tended to favor extractive industries. They are not part of a right-wing conspiracy; to suggest so shows the author’s utter ignorance of the topic.

    Discourse-based approaches are not a panacea, but neither are they the epidemic the author (and several who regularly post here) suggest.

    If you’re actually interested in learning how these processes work, may I suggest:

    Keough, H. L., and D. J. Blahna. 2006. Achieving Integrative, Collaborative Ecosystem Management. Conservation Biology 20(5):1373-1382.

    Daniels, S. E., and G. B. Walker. 2001. Working through environmental conflict. Praeger, Westport.

  11. avatar JB says:

    A follow-up:

    I believe the failure of many discourse-based approaches is largely due to (1) inappropriate use, (2) poorly designed or administered processes, (3) lack of ability to share decision authority due to legislative mandates (this goes back to inappropriate use), and (4) biased implementation (i.e. implementation designed to favor a particular stakeholder group or outcome).

    I have heard many people advocate for “science-based” decisions. As a scientist I find “science-based” decision-making somewhat of a contradiction in terms. Fundamentally, the mission, goals and objectives of an agency/organization should drive (or determine the direction of) its decisions. Science can help by providing information as to what the likely outcomes would be were one to institute a particular policy or plan, but it cannot tell us what the goal of the plan SHOULD be. Keep in mind, most of the laws that govern the use of public lands demand that multiple uses be considered. Thus, agencies such as the FS and BLM consider grazing, timber-harvest, mining, recreation, endangered species, etc. when making decisions about how to manage lands.

    My point:
    Many who are dissatisfied with the direction of agency decisions fault “collaboration” and “consensus” decision-making processes, which is ironic because these processes were instituted to give the very people who oppose them a voice in agency decisions. NO MATTER WHAT DECISION APPROACH IS USED, AGENCIES WILL CONTINUE TO SUPPORT EXTRACTIVE USES SO LONG AS IT IS PART OF THEIR LEGISLATIVE MANDATE. The root of the problem are the laws governing the agencies, not the processes used by the agencies to implement them.

    My 2 cents.

  12. avatar Salle says:

    I now I said this before, and JB just backed my statement:

    Until the policies are changed, we will get nowhere. It is as JB said, the mandates of the agencies are directed toward extractive industries… Thta has to change as well as the US SC decisions that gives corporations consideration, the same as private individual citizens, and that money = free speech.

    Until these problems are addressed, the war of words vs ideas and power disrupting life for the powerless will drag on just like Israel and Palestine…

    Some of the SC decisions have been waaay wrong for the republic and cast in favor of extractive interests for corporate profit. We, the citizens, need to demand that our rights be preserved/restored and that corporations and extractive interests must live by the laws of the people, not the ones they rewrite for themselves at our expense.

  13. avatar Jimt says:

    Some excellent observations. One key point to remember, though. It is not the change in the environmental laws over the years that has caused the problem; it is the mass overhaul and strategic weakening of the implementing regulations which is the main culprit. Started with Regan, and it has been a deliberate approach by Republicans ever since. Couple that with budget cuts in enforcement and O$M budgets, and you get the message. Over the last 20 years, and more than ever over the last 8, you effectively now have a system where agencies are allowed to gut and circumvent the true intent of the law through the regulatory process. Last I checked our legal and legislative system, that “ain’t” supposed to happen. And regs are under the public awareness radar…who in their right mind wants to read the Federal Register on a regular basis…except lawyer types…VBG…I mean, look at what just happened with BLM effectively saying we won’t abide by a legislative edict to allow one body of Congress to impose a temporary halt to activities that harm certain public lands because WE think it is wrong…it is the law that Grijalva used to stop mining near the Grand Canyon that gained him so much respect among enviros…and hatred from the mining and other extractive industries. Last I checked, the courts make rulings like that, not the agency as a matter of pronouncement.

    It may be time to look at the Administrative Procedure Act, and possibly rein in the freedom of executive agencies to pass regulations that circumvent or gut the intent of Congress…for BOTH parties. Such a change would have to be done very very carefully…but it may be time given the Republican manipulation and corrupting of its provisions.

  14. avatar JB says:

    “It may be time to look at the Administrative Procedure Act, and possibly rein in the freedom of executive agencies to pass regulations that circumvent or gut the intent of Congress…for BOTH parties.”

    Jim: The problem is enforcement. When agency Rules conflict with legislative mandates our only recourse is to challenge actions based on the offending Rules in the courts (under APA). This takes time and money. Meanwhile, Congress has been asleep at the wheel–they sit on their hands and refuse to take action, knowing that action will put them in at odds with either environmental groups or industry. The result is that the Executive branch does what it wants unless and until it is challenged in the courts.

  15. avatar jimt says:

    That is a piece of it, but the standard of review gives great deference to agency discretion, and therein is the need for change. Some of it lies in the court decisions and precedent; some it lies in the conservatives that dominate the courts, but if the standard of review is changed so that the courts are no able to rubber stamp agency decisions…it “should” lead to better decisions more inline with the intent of the laws. But, it is always risky to change standards of review, so hence my feeling it needs to be examined cautiously.

  16. avatar JB says:

    Got it. That makes sense to me. I also understand your reluctance to advocate this approach, as it *could* promote legal challenges to all sorts of government decisions (well beyond land management agencies).

    Nonetheless, an interesting idea!

  17. avatar Salle says:

    I know that this is about the EPA and Obama’s transition team etc… but it says something about an underlying possibility of something we haven’t been able to see when assessing the incoming cabinet…

    http://www.grist.org/feature/2008/12/29/index.html

    Leaves me with a little more positive feeling about the possibilities for our future, especially after the Ag and DoI secs were announced which left me very unhappy.

  18. avatar JB says:

    A last note on the use of discourse-based approaches to NR/public lands decision-making…

    Continued focus on the decision process is misplaced, and counter productive. Again, these processes were instituted to (1) involve formerly disenfranchised stakeholders (e.g. environmentalists) and (2) avoid litigation (i.e. by finding policies that are socially acceptable). Collaboration and consensus, while dirty words on this blog, are MORE DEMOCRATIC THAN PREVIOUS DECISION PROCESSES used by NR management agencies. Trust me, NR management agencies would be all too happy to drop the use of participatory approaches (which are time consuming and expensive) in favor of the top-down “agency knows best” approach that dominated land management before the 1980s.

    As I already mentioned (above), if your beef is with agencies continued acceptance of extractive uses, a move away from collaborative approaches will not help your cause; rather, it will likely simply cost environmentalists their seat at the table. The laws that govern how public lands SHOULD be used (e.g. MUSY Act, FLPMA) currently allow for extractive uses; asking agencies to disallow these uses is pointless when the laws that govern the agencies call for them.

    Thus, if you want livestock off of public lands, the law(s) needs to change. This focus on agency decision processes is pointless.

  19. JB,

    In response to some of your points.

    Public participation was instituted by law in FLPMA, NFMA, and other laws. So the public, and non-extractive groups by law cannot be excluded from participation. That is how the formerly disenfranchised achieved legal status to participate. If this isn’t provided, the lawsuit forces obedience.

    This is indeed more democratic than previous processes.

    However, since the 1980s the public lands agencies have by themselves, and under pressure from some states, politicians, and some Administrations, directed public participation into unproductive channels (no change) like consensus.

    By consensus, I mean it in a way colored by my Idaho experience as exemplified by Senator Mike Crapo who just loves this kind of decision process because it assures the interests most satisfied with the status quo won’t have to make any change they don’t desire.

    Consensus sort of means unanimous agreement, not by formal vote, but by no group in the process choosing to go to the trouble to object.

    Traditional western ranchers are always the most satisfied with the personal relationships they have with the agencies/politicians (ignore the laws), we-don’t-want-to-and-don’t-have-to-change approach. They will object to anything they are not in favor.

    As a result, any consensus group involving these ranchers will never result in real change because they have no interest in change unless the status quo is offset by even more generous benefits than they have had in the past (as in the Owyhee Initiative).

    Changing the law is vital, but that does not mean agency decision processes are thereby assured because, as you know, all laws are changed, some even voided, by implementation.

    Under Bush lack of adherence to law and regulaton reached its peak. Agency implementation was everything, and the only weapon to force some compliance was the lawsuit.

    Those green groups who collaborated in this corrupt process achieved nothing, so far as I kind tell.

  20. avatar JB says:

    “Public participation was instituted by law in FLPMA, NFMA, and other laws. So the public, and non-extractive groups by law cannot be excluded from participation. That is how the formerly disenfranchised achieved legal status to participate. If this isn’t provided, the lawsuit forces obedience.”

    Ralph,

    This is exactly my point. These laws specify public participation AND multiple use.

    From NFMA (Sec. 14):

    “…the Secretary, by regulation, shall establish procedures, including public hearings where appropriate, to give the Federal, State, and local governments and the public adequate notice and an opportunity to comment upon the formulation of standards, criteria, and guidelines applicable
    to Forest Service programs.

    “(b) In providing for public participation in the planning for and management of the National Forest System,
    the Secretary, pursuant to the Federal advisory Committee Act (86 Stat. 770) and other applicable law, shall
    establish and consult such advisory boards as he deems necessary to secure full information and advice on
    the execution of his responsibilities. The membership of such boards shall be representative of a cross
    section of groups interested in the planning for and management of the National Forest System and the
    various types of use and enjoyment of the lands thereof.” (16 U.S.C. 1612)

    Two things to note from the above: (1) NFMA does not specify the type of public participation, but simply specifies that the public should be given the opportunity to comment; and (2) in establishing an advisory committee the Secretary [of Ag] has the discretion to “consult such advisory boards as he deems necessary.”

    Collaborative processes were largely instituted after the first round of forest planning proved a dismal failure–nearly every plan was challenged. During this first phase of planning, the above quote was taken to mean that the agency need only provide the public an opportunity to comment on plans, which they [the FS] did. After the failure of these plans, collaborative processes were instituted to give the public (in the form of stakeholder/interest groups) MORE of a voice in Forest planning. This is why I find the suggestion that consensus/collaboration is a right-wing conspiracy so objectionable. It is simply not so.

    – – – –

    I agree that there are many reasons for western environmental groups to be dissatisfied with the decision-processes used to make NR management decisions (especially at the state level). However, I would argue that these processes are often simply implemented in an attempt to avoid lawsuits and legitimize the result. This is not collaboration, at least not by any definition I am familiar with. Rather, it appears to be traditional “back-room” decision-making with a face lift.

  21. avatar JimT says:

    There are lots of reasons why public involvement..at least public involvement by the environmentalist/progressive crowd has not been effective. I think JB and Ralph are on the same side…VBG…and frustrated for the same reasons. Some observations, holes and all…~S~

    Collaborative processes, including consensus building, in theory, assume all stake holders come to the table as equals. Sort of like co-ownership of a house–everyone is equal in their share of the bundle of sticks that are property rights In the case of the recent PR campaign to sell this as the best way to solve Western resource disagreements, this is just not the reality, and it has been by deliberate design. For example, comments can be overwhelmingly in favor of an environmentalist bent…snowmobile restrictions in Yellowstone…yet, the agency simply ignores them, inviting litigation, knowing the present Western judge is unlikely to grant an injunction pending the litigation outcome. The damaging activities continue..Or….

    . Hearings are scheduled in extractive industry strongholds, ensuring a mismatch in public participation, and not a small amount of intimidation for those enviros brave enough to show up. Sham compliance with the intent of the APA and its regulations, but again, agencies get the benefit of the doubt.

    And there is the greatest bureaucratic dodge of all…Let’s form a blue ribbon committee and study it to death. Status quo continues.

    The certainty principle–we can’t possibly move forward on climate change since there is not “100% scientific certainity” on this issue, and it merits further study. Yet, when it comes to status quo activities like oil and gas exploration, something like oil shale gets a final rule and tacit approval despite no viable technologies not to mention studies of the cumulative impact—certainity gets flushed down the toilet, fear of job loss is hauled out once more..and…well, you know.

    And so on. These so called “bringing together different minds” efforts areusually done with a heavy advantage to the status quo, and in these cases, the extractive industries are the beneficiaries, inertial organization truths set in, and you have sham compliance. Or, compliance with no shame–a word this past Administration clearly abandoned from the first inauguration.

    The law’s may need some clarification, but often the laws are deliberately left vague to not hamstring the agency in its implementation. One can argue the pros and cons of such an approach to governing.Such is the nature of the system of government we have. I do find myself coming back again and again to agency implementation of the rules as the key, coupled with the necessity for the pols in DC to give their cash-stained hands the hell out of daily management of the agency’s business.

    By the way…Happy New Year…VBG

  22. avatar Salle says:

    Very well stated, JimT!! I can’t argue with that, having been at many of these so-called stakeholder gatherings and public hearing shams… and walking away with the feeling that I have been violated yet again.

  23. JB,

    If that is your point, I certainly agree that public participation is often ignored, though it is legally required. However, you can file a NEPA lawsuit and often win if they have not answered the significant issues raised in the public process (and I think we can guess that Bush, et al. haven’t).

    I’m not sure if they have to do the same with comments on draft regulations. Because the Federal Register often explains the suggestions, complaints, different ideas, received, I assumed it was so.

    Of course, for the last 8 years everything has been in the backroom and the laws and regulations honored only as exceptions. Lawsuits have been the only successful recourse.

    Consensus groups are not the same as public participation. I know the FS begin them for the reason described, but did they advance the planning process? It seems like the lawsuits continued.

    Then this method got a shot in the arm in the arm with the development of things like the ill-fated Quincy Library Group. Politicians wanted to love it — let their constituents iron out the differences ahead of time so they could then take credit with no cost of political capital.

    I began to think seriously about this when I participated in the 1990 Idaho Wilderness mediation. We wrote an article on this in “Mediating Environmental Conflicts.” Blackburn and Bruce (eds), Quorum Books (1995), chapter 16. These turned out to be preliminary conclusions (for me, anyway).

    By 1992 I gave up on this kind of activity after one more unsuccessful go at at it (this one organized by then US Representative Mike Crapo). At the breakup meeting in Salmon, Idaho there were guns under the table.

    Oh, I forget the attempt to get the small loggers some Targhee NF timber. The Forest Service probably set us up for failure, but if they did not, the oh-so-friendly-seeming aides to the Idaho congressionals present (including Senator Kempthorne’s) clearly used the process to split apart any forming coalition between a few brave local (small) timber operators and greens.

    I never participated in a successful group. I’m lucky I didn’t get shot (or have to shoot).

    I’d maybe return if these groups were established fairly and were run with the acknowledgment that a decision-maker of authority would settle a dispute if no consensus could be achieved. Then the ranchers would have no motivation to just sit on their privileges and collect even more benefits.

    But I probably wouldn’t. After a while you just don’t want to associate with this kind of people. It’s a job for someone young and still optimistic.

  24. avatar Salle says:

    Crapo seems to like those gatherings where he doesn’t seem to mind that the players on his side are adorned with sidearms… Seen it myself in where else but Salmon, Idaho a number of years later when they were yelling at Ed Bangs about how wolves were foisted upon the state and damn-near backhanding him as they spoke. I sat near a door closest to my car just in case since I wasn’t “packing heat”. Didn’t know that I could at the time, I might have if I had known.

  25. avatar JB says:

    Ralph,

    Thanks for elaborating; it helps me to understand your opposition to collaborative processes. Based on what you and others (thanks Salle) have described, I would again emphasize that what you’ve witnessed in the West are not processes that anyone I know would advocate. Any decision process designed with a pre-determined outcome in mind or to specifically disenfranchise or intimidate particular groups can be collaborative only in name.

    As JimT suggests, I believe we are on the same side; my hope is that people to focus their critiques on the agencies that implement biased decision processes, not on the buzzwords “collaboration” and “consensus.”

    Keough & Blahna (cited above) found 8 elements that led to successful collaborative decisions (decisions were deemed successful if (a) environmental protection was increased and (b) decisions were not appealed); when agencies implement “collaborative” processes, I would suggest taking a copy of this article and demanding the processes incorporate these elements.

    (1) Integrated and balanced goals: Do managers attempt to identify and meet social, economic, and ecological goals simultaneously, such that all three categories benefit and the benefit is maintained over time?

    (2) Inclusive public involvement: Does the process include all potential stakeholders, regardless of their relative size or influence?

    (3) Stakeholder Influence: Is stakeholder input actually used and does it have real impact on final decisions?

    (4) Consensus group approach: Do stakeholders meet as a group and use a consensus-based process for providing input (Cortner & Moote 1999; Wondolleck & Yaffee 2000; Daniels & Walker 2001)? By consensus, we mean an opinion or position reached by a group as a whole (agreement by a majority), not one primarily influenced by the agency or a few key stakeholders or one that requires unanimous approval.

    (5) Collaborative stewardship: Do stakeholders develop a sense of ownership for and become personally invested in the plan or decision?

    (6) Monitoring and adaptive management: Do stakeholders agree to include monitoring in plan implementation and support future remedial actions needed to meet environmental and social goals?

    (7) Multidisciplinary data: Are ecological, social, and economic variables included during data collection, analysis,
    and monitoring?

    (8) Economic incentives: Do economic incentives exist for stakeholders, local communities, and agency partners to implement plans or decisions?

  26. avatar JimT says:

    I think I said this in some other comment…collaboration, consensus-building, kumbaya mind melding events (couldn’t resist :*)) are ok so long as they are viewed as only problem solving devices, and NOT as an organizational philosophy to the exclusion of fact finding, and rational evaluation of said facts according to applicable laws and regulations. The trouble is…it sounds “nice”, and if you oppose these neighborly sounding facades, you are labeled a nut, extremist eco-terrorist, and marginalized by the power brokers. Too many times enviros have gotten rolled at these events…no more.

    What do you think David Brower would say about all of this, especially after Glen Canyon dam?

  27. avatar kt says:

    So collaboration was deemed successful, in part, if decisions were not appealed?

    So this just reinforces that it is just a strategy for letting bureaucrats off the hook. No wonder the mini-industry in attractive mostly female good-humored facilitators equipped with flip charts, colored dots, and lists of housekeeping items.

    There’s nothing a lazy bureaucrat loves more than a good, long meeting where all they have to do is paste a few colored dots under the lists of preferred suggestions.

    And by what does this study gauge increased environmental protection ? In the Owyhee Initiative, which is touted as a “collaboration” but it really was not – yes Wilderness would be designated – but 200,000 acres of land that is already protected by WSA status is “released” and given up or cattle development by the likes of Simplot. And much of the WSA land to be released is critical sage-grouse habitat. So for the grouse, the OI is a net loss and cattle facilities sure to follow in released WSAs will destroy habitat. Plus, would one factor in something like Larry Craig’s 3 million dollar Teton and other dam studies tacked onto the bundle of legislation the OI is part of?

  28. avatar Salle says:

    Once upon a time several years ago…

    I recall that Ralph and I went to a “stakeholders” meeting with the regional director of the USWFS in Boise to discuss concerns about wolf management and such. The reason we even had such an opportunity was due to a prior “stakeholders” meeting held with this same director except that the only “stakeholders” who attended (were invited rather) were the anti-wolf league of loud voices with the blessing and encouragement of then governor, Dirk Kempthorne. (Idaho’s legislative officials have a nasty habit of only announcing their “public” events only to those whom they want to attend, and the rest of us get to hear about it only a couple hours prior due to some leak or in the news the next day.)

    One of the comments I will never forget from that meeting came from the member of NPTEC (Nez Perce Tribal Executive Committee) at the time, who looked right at this woman and said (I’ll paraphrase but most of it is verbatim);

    …your agency is like a two headed monster that speaks to us with two mouths. With one you tell us not to worry and that we are doing good things and you want to help us do these things. The other tells us that you don’t want to help us with our wolves and that you have a duty to the state’s ranchers to do what they want you to do for them, things that are not good for our wolves…

    I had a hard time keeping a straight face at the time when he started this statement, and the look on the woman’s face was priceless… but what he said was the unabashed truth, they spoke with two heads… or in our terminology “out of both sides of their mouth”.

    Then Kempthorne’s underling spewed some crap about there not being enough science to back whatever it was that we, numerous pro-wolf organizations, had to say and basically brushed our concerns aside. I confronted him on that bogus claim and started naming studies that had been taking place for years by that time. From then on, I was a marked woman, every time I saw Kempthorne, has did a double-take ending in a scowl and every time I went to some hearing or other, I was pounced upon by his lackeys and those of Crapo and Craig attacking me for my news releases about things they said at other hearings and telling me that what I said, “wasn’t very nice…” Even at that event I was confronted more than once by these lackeys. To the one who said my article’s claims weren’t very nice, I looked her in the eye and said, “Yeah but it was the truth. And the truth isn’t always pretty or what you want to hear.”

    I have to agree with above statements and conclusions. I’ve been there, dealt with that and suffer for it on a number of levels whenever I deal with the opposition or their surrogates.

  29. avatar JB says:

    “So collaboration was deemed successful, in part, if decisions were not appealed? So this just reinforces that it is just a strategy for letting bureaucrats off the hook.”

    Kt: I disagree. I think it is fairly safe to conclude that everybody wants to avoid a lawsuit, if possible. Don’t get me wrong, I am a proponent of challenging agency actions that clearly conflict with the law, but lawsuits set up win-loss scenarios that tend to heavily favor one party. They’re great when they work out in your favor and a real bitch when a judge rules against you. (Side bar: A recent analysis found that the FS won the majority of suits brought against them). Isn’t a decision that results in more protection and no lawsuit preferable to one that results in more protection but still ends up in the courts?

    One of the reasons, I keep bringing this up is so that when state agencies initiate bogus processes, you folks in the West (I live in Happyville, OH) will be in the know; you’ll be able to say, “hey, that’s bullsh*t! I know what collaboration is, and you guys aren’t doing it.” But hey, if people want to keep blaming the approach instead of the offending agencies, it’s no skin off my back; I just don’t think it’s a very effective use of your time/energy.

  30. avatar kt says:

    If there are environmental laws, and they are being violated, and you think you can win legally, why would one want to avoid a lawsuit? Why would anyone settle for some dilution of the law in a “compromised” collaboration process if you cared about the land or wildlife at stake?

  31. avatar JB says:

    kt says: “If there are environmental laws, and they are being violated, and you think you can win legally, why would one want to avoid a lawsuit?”

    One wouldn’t, as I said directly above: “I am a proponent of challenging agency actions that clearly conflict with the law.”

  32. avatar JB says:

    kt says: “Why would anyone settle for some dilution of the law in a “compromised” collaboration process if you cared about the land or wildlife at stake?”

    You are assuming that the result of the decision process will (1) “dilute” the law, and (2) ultimately, have negative impacts on the land/wildlife. In regards to your first assumption, any type of decision process (collaborative or otherwise) should be conducted within the confines of the law; if you think the agency is breaking the law, then by all means, file a suit. Addressing your second point, the paper cited above provides four examples collaborations in western states that had positive outcomes from an environmental standpoint, suggesting your assumption is untenable.

  33. avatar JimT says:

    JB,

    Not as simple as you say to just file a lawsuit every time an agency doesn’t do what the law or regs say it should be doing. For one, recent Supreme Court decisions on standing–one can thank Scalia for this..are making extremely more difficult to get to court if you are an enviro group, private citizen, etc. Second, the numbers of violations by agencies in this administration skyrocketed, so one has to be strategic with the limited litigation resources available. Third, even the 9th Circuit has become hostile of late to environmental cases, so sometimes, the best legal strategy is to minimize the chance of making bad law that applies widely, and accept a local decision that is limited in scope in terms of environmental damage. Not an easy choice to make…or sell to a local conservation group.

    In order to judge your four examples, one would have to analyze the legal and regulatory issues alleged to be violated, the gain to the environment from compliance by the offending parties, and the potential loss to the environment if one accepts a voluntary agreement instead of insisting on compliance. Only then can one reach a reasonable conclusion on whether or not these agreements truly benefited the local environments, or were stopgap measures with limited shelf life from the species or habitat’s point of view. Frankly, anything that allows a rancher or mining company, or another extractive industry, to escape full liability for violations by being voluntary is suspect from the beginning, assumes old behaviors will magically be shed, and at the least deserves monitoring and strict liability penalties that really matter if the agreement goes bad. I suspect, for example, that if the rancher faced full and permanent revocation of the grazing permit, that might prevent future violations. You think that kind of provision would be accepted in these voluntary agreements?

  34. avatar Robert Hoskins says:

    I’d say that the problem with “collaboration and consensus” is a problem of what sounds good in theory doesn’t work in practice. Academics can come up with all the criteria they want to characterize successful c&c, but isn’t it interesting that in practice, those criteria never apply? Never!!! I’ve never seen it happen once here in the West.

    RH

  35. avatar JB says:

    JimT: “Not as simple as you say to just file a lawsuit every time…”

    You’ll get no argument here; clearly one can only file a suit when one has standing and one has to pick and choose carefully. Insofar as I can tell, your argument supports my initial contention that it is important to be familiar with collaborative processes.

    “In order to judge your four examples, one would have to analyze the legal and regulatory issues alleged to be violated, the gain to the environment from compliance by the offending parties, and the potential loss to the environment if one accepts a voluntary agreement instead of insisting on compliance.”

    Government agencies can use decision processes to make all sorts of decisions. There is no requirement that the law or regulations be violated. In fact, when laws are violated then the courts are a better option.

    RH says: “I’d say that the problem with “collaboration and consensus” is a problem of what sounds good in theory doesn’t work in practice.”

    Both Jim and Robert hit at the heart of academic criticism of collaborative/participatory processes–the criteria by which a process is judged will be subjective; moreover, it will likely take time to realize any environmental benefits, making processes that much harder to judge.

    Still, I argue it is important to be familiar with the developing science in this area. If you know what types of processes have led to desirable outcomes in the past, you’re in a better position to advocate for these processes; you’re also in a better position to cry “foul” when an agency tries to employ a pseudo-collaborative process as cover for a backroom decision. Anyway you slice it, it’s better to be informed.

    Also, I’ve heard a lot of complaining about collaborative processes and not one single suggestion about what other decision process an agency might employ that would allow it to meet the mandates of multiple-use, protection, and public involvement. Not being wedded to any approach, I’m quite interested to hear suggestions about what other decision processes might be employed?

    – – –

    RH: I’m happy to send you the particular article I’m citing via email? The examples they’ve chosen are all from Utah. I’d post here but the text is far too long. -JB

  36. avatar Salle says:

    In policy analysis it is important to understand when and why such an action becomes necessary.

    Policy, in basic theory, is a regulatory sort of agreement that defines how particular groups of citizens and citizen groups ~ stakeholders ~ are to interact and treat each other. An analysis is called for when it is identified that the policy has become lopsided or dysfunctional in some way and isn’t “working” any longer.

    Ways to conduct an analysis include methods that seem to have become the basic concept for the C&C model though I don’t agree that these methods actually work when enacted as they have been in the last many years, and in most recent times they have been jettisoned entirely.

    In practice, stakeholder groups are identified ~ those whom the policy affects ~ then analyzed through focus group input that offers the narrative of each group which is then analyzed via a method of deconstruction. By this deconstruction, the analyst identifies recurrent themes, common terminology and definition identification and purpose behind complaints/concerns. This set of first steps is crucial to identify what parts of a policy are problematic and need to be addressed. I think this is the part of the theory that is rarely practiced and is why we have so many messed up policies and it points to how they got that way.

    It seems, to me that is, that many of the agents responsible for carrying out these practices are ill informed of their duty, placed in these positions under false pretenses by special interests and a privileged few who sell out to the highest bidder and write policy accordingly without the “due process” described above. And I believe that it has become so blatantly so that special interest groups have hijacked the process to where they are actually simply writing the policies to their advavntage which are then rubber-stamped by legislators who are obviously “for sale”. And that they have some pseudo-opponents, like the corporate NGOs, who capitulate for whatever reasons which serve to defeat the process in developing appropriate policies and undermine the credibility of the real stakeholders…

    The “collaboration and consensus” method that is supposed to be the general means of dealing with policy issues and hopefully, conducted prior to litigation that is supposed to be a tool for use in clarification following this process. It just hasn’t been practiced and doesn’t seem like some stakeholders are interested in participating in this structured fashion. I call it the “temper tantrum” obstruction because many groups just don’t want to have anything to do with anyone or anything that isn’t in lock-step with their views/ideology/behaviors. They’d rather waste time and energy on finding ways to undermine the good of the commons than not have their way entirely. (Ranchers and and extractive industries and their legislative pals, for instance.)

    My two cents…

  37. avatar jburnham says:

    Some very insightful posts here. I second JB’s point here:
    “Also, I’ve heard a lot of complaining about collaborative processes and not one single suggestion about what other decision process an agency might employ that would allow it to meet the mandates of multiple-use, protection, and public involvement.”

    I don’t think I need to remind anyone that we’re talking about political issues here. It seems to me that these questions boil down to priorities (which are fundamentally political questions). As long as a plurality of the population prioritizes ranching, logging, mining, or ORV use over protection or “science based” management of public lands then it hardly matters what decision making process is used to make policy.

  38. avatar Salle says:

    I think that if the actual process of public input was used, there would be more ability to go about policy analysis as it was meant to be conducted. The problem is that nobody in public office has been able or willing to go about this element of “due process” that was developed to address a growing population of public stakeholders with concern for developing appropriate policies.

    It was actually a process by which the Clinton era roadless initiative and the wolf reintroduction policies were developed, there was a vast amount of public input and policy analysis conducted then. I feel that the wolf reintroduction process was one of the best, most appropriately conducted examples of “due process” that I have seen in my experience of “paying attention” to the political world.

    Maybe we need to put that methodology into practice… otherwise, all I can envision happening is more of the same shameful process of somebody else deciding policy for us when it is actually part of our responsibility as citizens to participate in the process. It is partly our fault for becoming complacent and fatalistic when tie were either good or too confusing because we the people weren’t all that interested. Perhaps we have become distracted by entertainment and instant gratification… now that the crap has hit the fan, we are suddenly attentive but find we have let our rights be stolen from us because we weren’t paying attention.

  39. avatar kt says:

    I guess J Burnham and JB, I just do not understand what is wrong with Public Comment Periods, Public Meetings to take input, and holding agencies to applying ecological science.

  40. avatar Robert Hoskins says:

    JB

    Go ahead and send it. I’m highly skeptical.

    The alternative to C&C? How about old fashioned grass roots organizing and pressure, endless pressure? As a practical matter, C&C came about to undermine the successes achieved through grass roots activism, and with that in mind, it has succeeded.

    RH

  41. avatar JB says:

    “The alternative to C&C? How about old fashioned grass roots organizing and pressure, endless pressure?”

    Robert:

    That is fine for non-governmental organizations; what I’m asking is, from the perspective of an agency (the FS, for example), what type of decision process would be acceptable to the “public” while at the same time meeting the agency’s multiple-use AND public involvement mandates?

    “C&C came about to undermine the successes achieved through grass roots activism, and with that in mind, it has succeeded. ”

    Agencies (mainly the FS) began to use social surveys, focus groups, collaboration and a number of other tools to (1) meet legal mandates for public involvement (this largely came about in response to suits from both sides following the initial round of forest planning after NFMA; see my earlier comments), and (2) to manage conflict among multiple “users” as demanded by laws such as MUSYA and NFMA (again, see my earlier comments). The fundamental problem–from the FS’ perspective–was (and still is) that the law(s) called for multiple legitimate uses of public lands. Mathematically savoy readers will recognize that it is not possible to simultaneously maximize an equation for multiple variables; thus, we (the public) fight over which “uses” of the land should be prioritized. Various types of organizations have employed discourse-based decision processes (e.g. collaboration & consensus) for decades to manage conflicts that involve multiple, competing interests–conflicts like how to manage public lands. The FS was simply looking for a tool to manage disputes among multiple parties and picked up the methods that private organizations were already using. Other agencies subsequently picked up on these approaches and have been using AND MISUSING them ever since.

    So again, I conclude:

    (1) The author of the piece cited is utterly misinformed in concluding that collaboration and consensus are part of some right-wing conspiracy; their use and misuse came about quite logically, as a method for managing conflict among competing interests.

    (2) If you are interested in getting extractive uses off of public land, you need to focus on changing the laws–all of the effort put into bashing the process is misplaced when the law demands, supports, or allows for extractive uses (this is where I see grass roots organizing as beneficial).

    and

    (3) Until such time as the laws change, it is important to know what types of collaborative approaches result in better outcomes for the environment. If you have knowledge about these processes you will be in a better position to demand that agencies implement them fairly (e.g. all stakeholders are represented, neutral facilitation, shared decision authority, etc.), which should lead to better outcomes for the environment.

  42. avatar JB says:

    “I guess J Burnham and JB, I just do not understand what is wrong with Public Comment Periods, Public Meetings to take input, and holding agencies to applying ecological science.”

    kt,

    I’ve heard these approaches referred to as the 3Is approach (invite–inform–ignore) and alternatively, the MAD approach (Make a decision, Announce a decision, Defend that decision). The point is that, under these models, the agency ends up making a decision with little or no public involvement (some have called this the “expert authoritative” approach to decision making). This is exactly what the FS did in the first round of forest planning–which resulted in a lot of pissed off parties (on all sides of the issue) and a host of lawsuits. In this scenario the “public” (in the form of various stakeholder groups) has information but no power–which tends to piss people off.

    Under a best case scenario, collaborative decision approaches should seek to involve ALL stakeholders in a meaningful way, on equal footing. The result is that the “public” actually participates in the decision process (i.e. they have information AND power).

  43. avatar JimT says:

    OK. From what I can tell, JB favors changing laws as the method of choice in terms of effecting badly needed solutions to the abuse of public lands and its floral and fauna inhabitants. I can go along with that, but given that, if memory serves, the 1990 Clean Air Act Amendments were the last major overhaul of any of the “big” environmental pieces of legislation, I am not hopeful. I take one of my major clues from the appalling failure of both Democratic and Republican Congresses to fail to revise the Mining Law of 1872, a law that is clearly out of date not to mention a blatant give away of resources to the detriment of both the public resource and the national treasury. I think the focus will remain on the implementing regulations, for better or for worse. The lesson from Regan that the best way to affect agency effectiveness is to focus on the regulatory process isn’t lost on the Dems..at least, it shouldn’t be.

    In terms of JB’s question about alternative decision making processes, I think the real issue is the motivation, not the methodology, of the officials of the particular agency. When you have an agency culture that is focused on a political agenda to the sublimation of its legal and regulatory duties, decision making processes merely become a sham device to make sure the “right” result is reached, no matter if you have to manipulate the nuts and bolts of the process to resemble Gumby or Pokey in their flexibility. IN THEORY, the consensus and collaboration models work great, In the political world, they are slight of hand tricks, misdirections to get the public to sit back down in their seats so the agency show can go on.

    At least with litigation, one can force them to show you how they do the trick. But, yes, you are correct in an earlier assertion that lawsuits are a sign that things are broken, and other problem solving techniques have failed, passively or actively. But, it is an option fraught with risk and cost, as I mentioned earlier. I think lawsuits are best used for effecting sweeping changes to laws and regs affecting large areas of ecosystems substantively, or for improving important sections of key pieces of legislation, like consultation requirements in the ESA, now under attack from the Bush administration, as most of you know. Ollie Houck, from Tulane University, wrote an interesting piece my wife told me about, but I have yet to read, which listed some of the most important lawsuits brought in the history of environmental law, and the reasons why. I don’t know where to find it..perhaps the Tulane Law Review, or you could contact Ollie..he is one of the great unsung heroes of the environmental movement and an interesting guy.

    So, is it as simple..and as difficult..as changing the culture of the implementing agency? And,with Bush loyalists burrowing in like ticks on a moose, is it possible?

  44. avatar JB says:

    JimT says: “…I think the real issue is the motivation, not the methodology, of the officials of the particular agency. When you have an agency culture that is focused on a political agenda to the sublimation of its legal and regulatory duties, decision making processes merely become a sham…”

    Exactly! The process is only as good as the intentions of those that control it. If the agency is hell-bent on a particular outcome, they’ll get it no matter what process they chose. In such cases, criticism should be directed at the implementing agency.

    “JB favors changing laws as the method of choice in terms of effecting badly needed solutions to the abuse of public lands and its floral and fauna inhabitants…I think the focus will remain on the implementing regulations, for better or for worse. ”

    I agree that this is the most likely outcome. However, if there was ever a time to push for legislative changes, it is now. Given the depth of the economic crisis, I’m not sure the Democratic majority will last (at least in the Senate).

  45. avatar Salle says:

    “So, is it as simple..and as difficult..as changing the culture of the implementing agency?”

    Maybe not so simple but is essential to making the changes needed in these agencies as well as changing policies to address current issues in “realtime” ~ Meaning that it has to start NOW and anytime after this very second is not soon enough. The URGENCY OF NOW is the essence of the motto we need to repeat ad nauseum.

    “… And,with Bush loyalists burrowing in like ticks on a moose, is it possible?”

    Only if we light the match and keep burning those ticks off the flesh of our wildlife and wild lands (and the agencies that govern them) before the disease spreads any further! And we need to simultaneously develop a vaccine (set of regulatory policies for agency operational culture) to stave it off so that it doesn’t re-establish into a greater pandemic than it already is.

  46. avatar JimT says:

    At this point in time, the C and C decision making processes are so corrupted by the agency’s implementation that it is like the fruit of the poisonous tree concept in evidence for all you legal eagles out there. I don’t see how you separate the two, JB…

    There is no credibility for these decision making processes because their history by this Administration is so tainted, so reality demands their rejection, or at least substantial suspicion when a lands or wildlife management agency trots out a Quincy Library type process or group. So, really, it leaves the citizen activist in a tough place. Deal with the agency personnel, but know that the process is flawed because of the culture of the agency personnel in problem solving these past 8 years…as well as legacies from the Watt era. It is no accident that the deliberate marginalization of the citizen activist continued under Norton, a Watt protege. And you know that if an activist group complains about the sham meeting of the minds, it just gets spun as elitist, leftist, pinko-commie obstructionism…”See, I told you, there is no satisfying these green folks, so why try?”

    So, for awhile, it is absolutely rational to be paranoid about agency consensus efforts, based on both the process and its ineffectiveness in implementation, AND the culture of the agency. Obama’s folks will have to understand the wariness of the folks out West until they prove the culture is improved, and their word means something besides being a synonym for “screw you”…Part of the Bush legacy, unfortunately.

    Just when you thought 2009 was getting better…~S~

  47. avatar JB says:

    JimT:

    I separate them because I believe it is important to tackle problems at their origin. A corrupt administrator will employ a corrupt process, whatever name they attach to it. Focusing blame on a particular type of process lets these people off the hook; it suggests the process (in general) is to blame, when in fact it is simply being used as cover by those with an agenda.

    Despite the paranoia of some here, not all administrators are corrupt. I haven’t given up on collaboration because I believe, under the right conditions, such efforts can be more transparent, result in meaningful and lasting participation among stakeholders, AND better outcomes for the environment. Call me an optimist. 🙂

    At any rate, I appreciate the conversation.

    JB

  48. I think JB is right in that given right conditions and honest administrators you can in principle sit down and come up with a solution where everyone is better off.

    “Win, win” got to be such a buzzword in the 1990s that a lot of people didn’t notice when it changed to “we win and you lose,” although if you are nice about it we will tell the media you are “reasonable” folks.

    Back to Idaho. Is is possible in principle in bargain with timber and energy. Ranchers, however, will take a loss to themselves to make sure you get nothing. They will go for “lose, lose.”

  49. avatar Brian Ertz says:

    social scientists / organizational theorists have consistently demonstrated that the best way to compel compliance via regulatory framework is to effectively communicate what is in-bounds and what is off-the table. C&C breaks down that fundamental communication.

    The problem is that the C&C framework ‘muddies the waters’ with regard to a regulator’s relationship with the regulated and with the public that has a right to involvement.

    It may very-well be that there are a dozen examples of C&C models that have worked out for all parties involved given a very particular issue. The problem is, organizationally – the consequences of C&C, given political frameworks extend beyond particular projects – and the regulated are given a level of leverage that undermines the regulators’ ability to affect positive results with regard to many issues of which there are already (supposed to be) statutory/regulatory obligations.

    Let me ask this : Why are C&C wilderness designations held in limbo for years and years by extractive interests even as those same interests on the ground support the designation in which the C&C process has given them everything but the kitchen-sink and compromised away much of the very idea of wilderness ? Is it the case that C&C wilderness designation in limbo is more valuable at quieting those conservation interests with regard to other issues ? i.e. are conservationists influenced – compelled to keep their mouths shut concerning say – a state wolf plan, or an RMP, or anything concerning an industry that extorts silence elsewhere as an implicit condition of its maintaining ‘consensus’ or cordial ‘collaborative’ relations on a particular project ‘over here’. You can’t say that is not the case – many involved in wilderness in places would even admit, at the very least, that it’s not in their interest to point out the flagrant violations of law with such a prospect on the burner.

    That’s the pitfall – when it becomes about you and me and whether or not we get along – it’s too political – the focus steers away from the science and the existing law as the baseline and the struggle to balance interests that are damn-well willing to exploit relationships (with over 100 years practice in the case of Livestock) becomes where “success” is at.

    People involved in regulator/regulated relationships need to have a very clear idea about the nature of each’s part/responsibility given that relationship — the law and science better inform responsibility and the public interest than C&C.

    Regulators become (at least) implicitly hamstrung on issues involving enforcement when their ambition elsewhere is contingent on not pissing off the interests they’re supposed to be regulating. That’s what C&C does.

    I’ve cited my argument with your contention – arguing that C&C is systemically predisposed to shortfall (C&C doesn’t fail because existing regulation is inadequate – C&C breaks down efficacy of existing regulatory itself – it’s largely the problem) if what you want are rationalized & standardized enforcement mechanisms that are capable of preserving wild places and wildlife on lands given their regulated lease for extractive use. I might as well slam this thread with the dry argument again – perhaps this time I might enjoy a response to what I consider to be a really interesting topic :

    Regulators perceptions of what constitutes compliance and non-compliance are largely dependent on third-party informants and the environmental imposition of privacy restraints afforded regulated parties or simply the demand to expend resources on gathering information. Consequently, informational dependencies develop. Such dependencies contribute to the development of relationships that make regulators, and perhaps it is not unfair to infer third party oversight, prone to engage in cooptation (Selznick 1966) in seeking to settle disputes over policy development, implementation, and even compliance with existing regulation.
    Furthermore, both regulators and regulated organizations posses resources. Regulators are afforded power but are often limited in financial resource to enforce existing regulation. Regulated organizations frequently possess financial resources, political relationships, and privacy-protected information necessary for the proper enforcement of regulation, all of which can obstruct social control (Stone, 1975: 96; Cullen, Maakestad, and Cavender; 1987). Utilization of these resources can be costly and result in contentious conflict. To avoid the cost of this arrangement, collaborative processes have been advocated and institutionalized (Vaughan, 1983: 88-104). These processes engender interdependencies. Parties become financially motivated to settle disputes by keeping opposing interests at the table rather than by expending resources in conflict. The interest to conserve financial resources, to be perceived as moderate, or whatever motive an interest hopes to achieve in engaging in collaboration, makes each dependent on the other’s maintained presence at the table.
    As sympathies develop toward regulated parties resulting from the newly developed interorganizational regulatory relations, or inclusive collaborative bodies, autonomous levers of social control break down.
    Threat of sanction is an effective regulatory mechanism of promoting compliance (Hawkins, 1983: 68) with regulatory objectives. However, codification of sanction alone is not enough to ensure optimally effective compliance.
    The severity, perception, and actuality of sanction all contribute to its efficacy (Williams and Hawkins, 1986). Institutionalization of negotiation and compromise among parties engaged in interdependent regulatory organizational bodies tend to mitigate severity “and its major impact is on the ability of regulators to threaten or impose meaningful sanctions” (Vaughan 1990). Stinchcombe (1986 – 234) makes this argument based on would-be enforcers hesitation to effect future bargaining potential. Vaughan (1990) supposes hesitation of collaboratively invested parties to employ harsh financial sanction on the regulated given the regulators’ already disclosed interest in pursuing collaboration as a strategy to keep costs down. In this condition, the threat of a costly fight is perceived as a de facto threat of retribution/sanction imposed by the regulated on regulator.
    It is important to make explicit that these failures to develop effective regulatory enforcement mechanisms, i.e. sanction and punitive levers etc., need not be solely attributable to failures of individual participants. The breakdown of the rationalization of regulatory enforcement results as “compromise is an enforcement pattern systematically generated by the structure of interorganizational regulatory relations”(Vaughan 1990). It is the process of organizing interests collaboratively itself that becomes a structural constraint to regulatory compliance.

  50. avatar kt says:

    Geez Brian, you wouldn’t be talking about Idaho there, would you? Where some enviro groups will do nothing more than grovel for “Wolf Viewing Areas” – rather than be seen to step out of line and upset a delicate balance of supposed collaboration on other issues? Like the wretched Owyhee Initiative? Go along to get along. Don’t you lowly enviros make too many wave over Anything, or your political access will be truncated, and your seat at the tilted table will be pulled out from under you. Then what are you gonna tell the PEW folks, and the Campaign for America’s Wilderness (CAW, CAW)??? That you’ve blown all their funding with no pseud-wilderness and waterless WSR to show for it?

    it’s time to move on. Collaboration schmollaboration.

  51. avatar jburnham says:

    Brian,
    The problem I have with your critique is that it assumes that land management agencies are operating under clearly defined priorities enshrined in laws, and all they need to do is apply good science and execute their responsibilities. This is certainly not the case. As the laws are written there is plenty of room for (legitimate) differences in interpretation, as many political questions and priorities are deferred to the agencies.

    Just one example from section 4 of the MUSYA: ‘‘Multiple use’’ means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions…”

    Forget C&C, any rule-making process still has to deal with the political questions of what “will best meet the needs of the American people”, “the most judicious use”, “sufficient latitude”… and so on. Science is of no help here either.

    To use your words I think the law is a long way from “effectively communicating what is in-bounds and what is off-the table” to the management agencies. In view of this it seems like focusing on process vs. substance of the law is barking up the wrong tree. The problem begins with the failure of the laws to effectively set priorities. Until this is remedied, any decision making process must necessarily be political.

  52. avatar Brian Ertz says:

    jburnham,

    The problem I have with your critique is that it assumes that land management agencies are operating under clearly defined priorities enshrined in laws, and all they need to do is apply good science and execute their responsibilities. This is certainly not the case. As the laws are written there is plenty of room for (legitimate) differences in interpretation, as many political questions and priorities are deferred to the agencies.

    IMO – this is just not the case to the degree that you suggest. The idea that existing statutory obligations regarding the administration of public lands and wildlife are “obscured” by multiple-use to the degree that rational enforcement is impossible (or even that conservation objectives cannot be widely achieved or extractive use humbled) confuses this administration’s active dismemberment, disregard and refusal to enforce the law for inadequacy of the law itself. And ultimately, it’s the argument industry makes (and apologist agencies) to get us to believe that they’re not breaking the law. They are – and have been.

    You give the example of MUSYA – citing the definition of “multiple use” – I’ll ask you to go a step further and define the “SY” in the acronym ~ it is true that “multiple use” is a reality largely cited to maintain archaic (mis)management – it is not true that MUSYA ‘locks in’ uses (or levels of use) that are not sustainable, in fact – just the opposite. Use must be sustainable – is this a political question ? I think not – it’s a scientific question.

    While it is true that agencies enjoy deference to a large degree – the ‘room’ within that deference is restricted by any number of statutory & administrative provisions/obligations beyond MUSYA (re: FLPMA, NFMA, ESA, CWA, NEPA etc.). These are all worth preserving by avoiding hanky-panky C&C.

    Look – i’ll never make the argument that legislators don’t need to make wildlife and wild places a more explicit priority over extractive use – nor that we shouldn’t eliminate ‘multiple use’ – but great strides are underway, even amidst the hell that has been the Bush Administration — whereby judges have been clarifying more and more that priority within existing law. There’s more than one way to clarify a priority – and if Dems are to remain more weak-kneed now than they were when the existing laws were passed, as it seems they are at least in the West with the calls for “collaborative” models to natural resource policy, we’ll need to clarify it favorably in court …

    C&C breaks down/slows down that “clarification” by advancing conditions that likely deter decision-makers from willingness to make decisions (decisions that garner deference — deference which would grease the wheels for wildlife) that conflict with industries being regulated.

  53. avatar JimT says:

    JB..

    Never said I gave up on the processes; said I was extremely suspicious of the processes given their history of use these past 8 years..to co-opt the agenda to suit a status quo political and economic agenda at the expense of the ecosystem and its inhabitants. At this point in time, the burden of proof is on the agencies under Obama to restore the faith of the citizenry; it is not incumbent upon the environmentalists to ignore the history simply because it is a Democratic administration. I never regarded Bill Clinton, or even Babbitt as a particularly “green” pol…

    Corruption comes in all sorts of forms..criminal, civil, moral, ethical…and I suspect most of the managers and “deciders” come into one of those categories for more than a few of their decisions. The folks I have the most sympathy for are the ones who are not doing their jobs because of personal threats of firing, or transferring someone to some outpost requiring the uprooting of family and lifestyle.

    I am glad you are an optimist. I remain a cautious skeptic with leftist tendencies…LOL…with a willingness to become an wild eyed idealist again with good decision making by the lands management agencies based on science and ecosystem health, restoration and sustainability.

    “It ‘ain’t’ paranoia if someone is out to screw ya”…VBG…and I think the agencies’s collective behaviors towards the environment and its supporters and defenders meet that threshold determination over the past 8 years.

  54. avatar JB says:

    “Parties become financially motivated to settle disputes by keeping opposing interests at the table rather than by expending resources in conflict. The interest to conserve financial resources, to be perceived as moderate, or whatever motive an interest hopes to achieve in engaging in collaboration, makes each dependent on the other’s maintained presence at the table.”

    Brian,

    One of the long-standing critiques of collaborative approaches is that–when done properly–they are time consuming and expensive. No agency in its right mind would institute a collaborative process as a money/time saving mechanism.

    Your critique seems to assume a process by which a regulatory agency and the regulated industry(s) are the only parties involved. I agree that such a process would be detrimental; in fact, it would not differ from the “back room” mode of decision making. The processes I’m familiar with are used for negotiating conflict among multiple COMPETING interests (think multiple-use). In such processes, (1) facilitation comes via an outside, neutral party; (2) the role of the agency is to specify the bounds of the decision (i.e. the legal constraints) and provide scientific information where appropriate; (3) the parties involved in the collaboration are competing interests (e.g. ranchers, wildlife advocates, etc.). Under these conditions, the “sympathies” that you mention may indeed develop, but this occurs between competing parties.

    So long as (1) the law specifies that a particular use (e.g. grazing) is legitimate and (2) the agencies have a vested interest in continuing that use (e.g. as when harvest or grazing fees are returned to a Forest, or when agencies are funded through the sale of licenses for a particular activity), focus on the process is utterly misplaced.

    On science…

    I absolutely agree with “jburnham” regarding the role of science. Science can answer a lot of questions, but it can’t provide answers to the most fundamental question regarding the conservation and use of natural resources–that is, what SHOULD we manage for. Such questions are “normative” in nature. Even in the example you’ve cited, I would challenge you to find a single agreed-upon definition of “sustainable.” Moreover, I would point out that the word “sustainable” never appears in the MUSYA. MUSYA defines “sustained yield” as “…the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.” Clear as mud.

    We are STILL debating (in the courts and academia) what the definition of an “endangered species” is under the ESA. The primary culprit is the very short phrase: “significant portion of its range.” The first case to address this issue was decided in 2001, and the matter is still be litigated. These 5 words gave the Bush administration the cover it needed to effectively gut the ESA–at least for the time they were in office.

    In the law ambiguity abounds, and the only solutions are (1) to reduce agency discretion under the APA (as discussed above), (2) modify existing laws, or (3) fight it out in the courts, which are dominated by Republican-appointed judges.

    And I was feeling optimistic.

  55. avatar JimT says:

    Hey, could be worse..we could be wondering if McCain would bring Norton back….or name Palin’s husband to head up the USFWS….

    so…does that make you feel optimistic again? !S!

  56. avatar Salle says:

    well, it kind of helps… But only a little.

  57. avatar JB says:

    Thanks, Jim! 😉

  58. avatar JimT says:

    One day at a time, folks..that is all we have…so make the most of it. Speak truth to power…Democrat or Republican

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Quote

‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey

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