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Preserving the Public Trust

Public lands management must reflect both local and national priorities.

BY LOUIS BLUMBERG

About 25 percent of lands in the United States—some 623 million acres—are publicly owned and belong to all Americans. These lands are held in trust for this and future generations and managed by agencies of the federal government, primarily the U.S. Forest Service, the National Park Service, the U.S. Fish and Wildlife Service, and the Bureau of Land Management.1 Our public lands are an important part of our heritage. They provide a wide variety of benefits to society, including clean water for human, industrial, and environmental use; outstanding recreational opportunities; habitat for rare and endangered wildlife; world-renowned scenic and wilderness areas; laboratories for scientific study and discovery; reservoirs for biological diversity; and commodities like logs, minerals, and forage.

Many of these important benefits are found primarily, if not exclusively, on public lands, often as a result of environmental legislation that provides greater protection for public lands. For example, in California, where the timber industry considers the state’s rules for forest practices to be the most stringent in the country, public land managers are held to higher environmental protection standards than the private timber land owners. Another clear example can be found in the Endangered Species Act, which can require federal land managers to take more protective action than private land owners when an endangered species is located in the same area.

As a matter of national policy, the great importance of meaningful public participation in decisions affecting our public lands is both long-standing and clear. Public participation in government decisions is a cornerstone of our democracy that can be traced back to Thomas Jefferson and other framers of the Constitution. Americans have long demonstrated their interest in being part of government decisions, most visibly by voting in elections, but also in myriad other ways such as working with government agencies to implement laws and programs created by Congress and other legislative institutions. Not surprisingly, this involvement includes decisions that affect environmental policy.

However, the existing decision-making process has come under increasing fire, in part for failing to involve citizens more in decisions affecting public land management. Relying mostly on little more than anecdotal evidence, some policy-makers eagerly promote increased decision making at the local level, claiming that local people know best how to manage their resources. Arguing that federal land management decision makers need to be more responsive to public input, consensus groups and various groups described as collaboratives have formed to push for local control of public lands.

The Wilderness Society rejects this view. Local input into environmental decision making does allow land managing agencies to adapt to local conditions and implement existing laws to better manage natural resources. But local control over environmental management of federal lands can only dilute environmental standards and weaken the laws and regulations that protect public land.

PUBLIC PARTICIPATON

In numerous statutes and regulations, land managers are instructed to involve the public. For example, the National Forest Management Act requires the Forest Service to consult with the public in the development of national forest management plans. Other environmental laws as varied as the Clean Water Act, the Resource Conservation and Recovery Act, and the Federal Land Policy Management Act require decision makers to involve the public.2 But the foundation for public participation in all federal decisions is the National Environmental Policy Act.3

Public participation is an essential part of NEPA. The regulations implementing NEPA establish procedures "to encourage public participation...at the earliest possible time."4 With its emphasis on public participation and information disclosure, NEPA encourages citizens to be involved in environmental decision making and it forces federal, state, and local government agencies to coordinate their environmental planning efforts.5 The Council on Environmental Quality—a body established to review government policies and programs for their compliance with NEPArecently reported that "since its enactment, NEPA has significantly increased public information and input into agency decision making."6 NEPA was a success, the Council concluded, in large part because NEPA had "brought the public into the agency decision making process like no other statute."7

Despite the good that NEPA has done, federal land management agencies have been rightfully criticized for environmental problems like the destruction of the ancient forest of the Pacific Northwest and the subsequent drop in populations of wildlife like the spotted owl. Federal agencies have also been criticized for failing to consider public input more carefully. "The public has lost faith in the process by which these decisions are made," said Art Noonan, former legislative aid to Montana Representative Pat Williams. "We’ve asked them their opinions again and again, and it never leads to anything."8

While most people would agree that the agencies need to do a better job at managing our public resources, that doesn’t mean we should discard NEPA and the opportunity it creates for all Americans to participate in agency decisions. Rather, we should do a better job of implementing NEPA, especially its public participation requirements.9

AGENCIES IN TRANSITION

Where some see gridlock, the Wilderness Society sees agencies in transition. One good example is the Forest Service, an agency in the midst of shifting its focus from commodity production to conservation. Responding to a clear change in national priorities, the agency’s efforts to make this transition have been thwarted by powerful special interests and their friends in Congress, not by some failure of the public participation process. For example, in 1995, as the Forest Service was reducing logging levels nationwide, Congress attached a special provision, known as the Clearcut-Salvage rider, to an appropriations bill, requiring the agency to cut more trees.

Yet in many areas the agency has been successful at reducing logging and shifting the focus of its management policy toward watershed protection and preserving the ecological integrity of the forests. In fact, the public’s use of the administration appeals review and, where necessary, litigation—opportunities established by federal laws and regulations—has played an important role in helping the agency make this change. Forced by these tools to consider public input and additional scientific information, the Forest Service in many instances has been compelled to revise its initial decision in favor of greater environmental protection.

Proponents of devolution, however, such as the Quincy Library Group—a grassroots organization made up of timber industry employees, environmentalists, and local citizens that has virtually taken over the management of the Plumas and Lassen and part of the Tahoe national forests—cite "the timber wars" as justification for delegating decision making authority to their ad hoc group of locals.

The Quincy Library Group was able to push its experimental plan for managing these forests through Congress by attaching it to an appropriations bill. The group cited prolonged conflict and gridlock as justification for their plan, which is unsupported by scientific data. As a result, logging could increase dramatically on a 2.5 million acre swath of public land. And over 159,000 acres of public forest, including 50,000 acres of old growth, will now be available for logging, even though an independent panel of scientists recommended that the forest be protected in a reserve system.

Throughout the legislative debate, proponents of the legislation blindly ignored the environmental concerns raised by the 140 conservation groups around the country and claimed that because the Quincy Library Group included five local environmentalists, the plan was environmentally sound. In fact, the Quincy story was old-fashioned, divisive pork-barrel legislation.

Contentious administrative appeals and lawsuits are an important, though small, part of the process. Currently, the Forest Service spends only about 4 percent of its annual budget on administrative appeals and lawsuits combined. In 1996, in California, the Forest Service had more appeals over boundary disputes with private landowners than over individual timber sales. Moreover, most appeals result in better decisions, with the Forest Service improving or canceling projects. Democracy was never intended to be simple or tidy. On balance, it works well, although some might view the decision making process as cumbersome. The challenge is to improve it without discarding its essential elements.

THE JARGON WARS

Rather than "the timber wars," the current state of public lands policy might be better characterized as "the jargon wars." Sure, everyone loves the notion of more public involvement, more responsive public agencies, and adversaries putting aside their differences. How can anyone not praise processes that reduce tension and promote social harmony, especially in small, rural communities? Dialogue is good, but that does not justify replacing the existing public participation process with local control of federal resources.

Clearly, desire for more public involvement, especially generated from the area closest to the resource, is growing. Some would call it a trend; boosters even call it a movement. But this interest in decreasing federal authority is nothing new in public land policy. The Sagebrush Rebellion of the late 1970s and early 1980s—an attempt by western states to wrest land from the federal government—and its echoes trumpeted by the 104th Congress are perhaps the most visible of the recent, failed attempts to divest the federal government of its decision making authority over public lands. Today, federal land policy is abuzz with the three C’s: collaboration, consensus, and compromise, usually preceded by "local." Yet the same problems and obstacles confront today’s devolutionists.

For starters, the process—to the extent that it shifts control and decision making to local interests—is illegal. Under our current laws, the federal land agencies have the statutory obligation to make the decisions.10 And, as we’ve already discussed, the agencies have the obligation to consider the views of all Americans in arriving at these decisions, not just those who happen to live close by.

The need for adequate representation of national interests and of public resources is also essential. The federal estate and the natural resources that are on, under, or flow over it are held in trust by the government for this and future generations of Americans. Jack Ward Thomas, the former chief of the Forest Service, couldn’t have been more adamant about the national nature of our lands when he said:

Right up front, I clearly state, without equivocation, that these are our lands; they belong to us lock, stock and barrel. And they will be our lands and our children’s and our children’s children’s lands far into the future unless we, as a people, through carelessness or apathy or conscious choice, allow that precious heritage to be sold or traded away for pottage.11

How will national interests, as well as the interests of plants and animals, be adequately represented should decisions be made solely by local collaboratives?12 In fact, history has shown time and again, as it did with the Quincy example in northeastern California, that pressure is great on people in small communities to "go along to get along." Understandably, locals tend to give greater consideration to issues of short-term economic gain than do those who don’t happen to live close by. Our system of national environmental laws was designed precisely to ensure that national interests would be properly represented so that local interests wouldn’t manage public resources in an unsustainable manner.

Another pitfall of granting decision making authority to local groups is accountability. To date, the vast majority of local collaboratives are ad hoc and exist outside the legal system. Often they have no by-laws, charter, annual reports, accounting records, or lobbying reports. The way that participants are chosen can be particularly problematic in creating some modicum of accountability. In its 1996 report, the President’s Council on Sustainable Development, a big proponent of greater involvement of local input in decision making, appropriately cautioned that

finding a way to integrate local, regional and national interests is not without difficulty. Issues involving public lands and marine resources, for instance, require that a broad, national perspective be maintained. To ensure that all interests are represented, all stakeholders need to be involved in the decision process.13

Another critical pitfall is the tendency for an agreement to override new science. In the Quincy Library Group case, a scientific report showed for the first time the location of ancient forests in the national forests affected by their plan. Saying "a deal is a deal," the group was unwilling even to consider drawing new lines on their map that would protect the old growth trees.

In addressing the issue of local collaboratives, an independent assessment ordered by Congress and funded by taxpayers at a cost of $6.3 million cautioned:

Generally, a local group cannot replace the depth of knowledge, expertise, and research capabilities of public agencies. Additionally, local groups may not entirely reflect local perspectives, nor does the creation of a place-based group ensure protection of the nation’s broader public interest in public lands and ecosystem integrity.14

GUIDELINES FOR COLLABORATION

The pitfalls of collaborative processes are many, yet these efforts can play an important role in helping to shape better decisions. Collaborative organizations are increasingly recognizing what we’ve know now for years: public agencies need to be more responsive to public input, be it local, regional, or national. Greater public participation can be a valuable tool in resolving disputes and in creating better decisions. And the social value of promoting dialogue and reducing tension is certainly valuable.

But collaborative decision making for public lands issues is particularly problematic. Just because a group of adversaries comes to an agreement doesn’t automatically make its proposal a good one. Sorely lacking is a set of guidelines or principles that can be used by anyone—government employees, elected officials, media, environmentalists, local citizens—to evaluate a given process and its product. Guidelines that might fill this void include:

n Adequate representation. Participation in the decision making process should be inclusive. Key stakeholders must be adequately represented as early on in the process as possible, with national, regional, and local interests at the table. The interests of the land and its resources and future generations of all species must be properly considered, and resources should be available to allow key groups to
participate over time.

n Clear rationale and purpose. All parties should understand the rationale and goals of the effort, especially the reason for initiating the process. Areas of common ground should serve as a foundation for the proposal, and diverse and divergent views must be recognized, considered, and where possible, incorporated. Most importantly, the process should not start with a predetermined goal that is unacceptable to some parties.

In other words, we should not ask, "What is the most acceptable way to log this roadless area?" but rather, "What is the preferred future for this roadless area?"

n Open process. The goal of the process should not be compromise; rather it should be agreement. Basing decisions on the consensus of all parties liberates otherwise reluctant parties to participate without the fear that they will be coerced by the majority.

Members are free to come to the table for mutual learning while remaining true to their ideals. Furthermore, all parties should have equal access to relevant information and the opportunity to participate effectively in an open, visible decision-making process where power is equitably shared.

The group should also develop a charter or some other formal agreement to promote participation and accountability. Minutes should be kept and circulated, and agendas should be widely circulated with as much notice as possible. Participants with a personal conflict of interest must disclose the conflict whenever it arises.

n Appropriate scale. The land base under consideration should be of a reasonable size as determined by ecological considerations. Where it is part of a particular ecosystem, private land should be included. Limiting the size of a project will generally result in less contention and a greater chance for success. Projects so large that they trigger the need for major administrative processes, such as forest plan amendments, will likely be more controversial, costly, and time consuming.

n Environmental protection. The proposal should be designed to result in a net environmental benefit; in no case should it result in increased damage to the environment. Any proposed action should undergo careful environmental and economic analysis.

n Legal consistency. The proposal itself, as well as all related activities, should meet or exceed all laws and regulations, including applicable land management plans.

n Scientific consistency. The proposal should be consistent with the best available science and incorporate a mechanism to ensure that it can be responsive to new information.

n Mechanisms for implementation. Collaborative processes should not seek to bypass existing mechanisms of implementation. Efforts should be made to implement plans through the appropriate channel of decision making.

For public lands, decisions affecting the character of the land, including levels of resource extraction, are appropriately made at the administrative level. Plans that result in recommendations for wilderness protection must be implemented through congressional action, of course.

n Funding. Funding needs must be realistic and achievable. Very often, implementation of plans requires funding in excess of historical levels; these funds are often redirected from other places and programs.

Such redirection can create animosity among neighbors and friends. As a rule, proposals should not draw funds from other communities or agency units or programs, nor should they pit one community or program against another. The source of funds and how they are spent should be carefully considered and disclosed.

n Accountability. Any group of people is free to propose any action consistent with law on the public lands. If that group expects to gain additional attention or credibility for being community-based or for involving multiple stakeholders, however, then the members of that group bear a special responsibility to act on behalf of particular constituencies. This requirement brings a special obligation to inform members of those constituencies through regular communication, especially those members who are interested but unable to participate on a regular basis. Ultimately, accountability for actions rests with the implementing authority. On public lands, the responsible party is the land-management agency; on private land, it is the land owner.

NEW TOOLS

In the end, federal agencies must make the decisions about the future of public lands and resources. These agencies cannot and should not abdicate their legal and moral responsibility to properly steward our public resources. Yet they also need to develop new tools to improve their capability to incorporate public input.

Earlier this spring, a federally chartered group known as the Committee of Scientists delivered a report to the U.S. Department of Agriculture addressing potential changes in the Forest Service planning regulations. Encouraging extensive collaborative citizen participation and building upon the human resources in local communities are two of the many recommendations in its report. Noticeably, the committee does not propose delegating decision making authority to local groups. It does, however, recommend greater public involvement earlier in the process, regardless of where it comes from. For example, a local group could help an agency design potential projects without relieving the agency of its obligation to have a public participation process under NEPA and to subsequently make the necessary decisions. One other promising idea raised by the committee is the notion of advisory committees from diverse stakeholders already authorized in the National Forest Management Act, the major legislation directing the planning and management of our national forests.

The role of the public in federal land decision making is under scrutiny. While mechanisms that make the process more effective and efficient are needed and welcome, proposals that restrict public access to the process and vest authority in a self-selected, private group are not. Keeping the public involved in public land decisions is central to our government and key to maintaining our unique natural heritage. Regardless of how seductive the notion of local collaboration might be—especially to politicians—local control of federal land decisions is bad for the land and bad public policy.n

Louis Blumberg is assistant regional director of the Wilderness Society, in San Francisco, California.

1. Other public lands are managed by the Department of Defense and other agencies like the Army Corps of Engineers and the Bureau of Reclamation.

2. Deborah Harten, "The Public Participation Requirement in Environmental and Public Land Decision-making: Politics or Practice?" Public Land Law Review (11) (1990), p. 153.

3. 42 U.S.C. 4321-4347.

4. 40 C.F.R. 1500.9(d).

5. NEPA Deskbook (Washington, DC: Environmental Law Institute), p. 189.

6. "The National Environmental Policy Act" (Washington, DC: Council on Environmental Quality, January, 1997), p.17.

7. Ibid.

8. Chronicle of Community (Missoula, MT: Northern Lights Institute, Autumn 1998), p.8.

9. Ibid.

10. George C. Coggins, "Devolution in Federal Land Law," West-Northwest (3) (Winter, 1996), pp. 211-218.

11. Jack Ward Thomas, statement before Congress, 1995.

12. Keystone National Policy Dialogue on Ecosystem Management, October 1966, p. 24

13. "Sustainable America: A New Consensus" (Washington, DC: President’s Council on Sustainable Development, February 1966).

14. "Status of the Sierra Nevada," Sierra Nevada Ecosystem Project, Final Report to Congress, June 1966 (Davis, CA: U.C. Davis Center for Water and Wildland Resources, 1966), p.55.

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