WSP11889 - Laserfiche WebLink

Home Browse Search

River producesnbecause those values are not recognized in tbe law. The only thing the law recognizes is tbe endangered species and tbe impacts on those species. So we end up discussing and form ulating alternatives to address endangered species issues when really we are interested in a much broader range of issues. One party wlUch will propose some way of meeting the endangered species problem, wlUch theylhink is the issue being discussed, and then the other party is not happy because it doesn't solve all the unDamed agenda items that are not OD the table. The result is cODfusion and frustration. Another problem witb using the legal system to solve these types of cODllicts is that it ofteD forces decisions before tbere is sufficieDt knowledge to make the decision, The traditioDal process involves listening to the evidence and making a decisionn that is the eDd of tbe process. Often judges are asked to assess, and to rule OD, the impact over the Dext tweDty years of some actioD on a species that is Dot fully understood, where the variation in the environment and the species could be considerable. The result is ofteD poor decisioDs, or inOexible solutions. I am not advocating completely dismissing the legal systems as an approacb to these conflicts. CertaiDly tbe many successful eDvironmeDtal lawsuits bave served to bring to the atteDtion of powerful groups tbe environmeDtal values they were impacting. One of tbe strengths of the legal system is the protectioD it provides less powerful groups. But things have cbanged. There is DOW virtually an equilibrium between the power of eDvironmeDt3J groups and the traditional water-developmeDt groups. The followiDg is an example of such an equilibrium. Each year there is a conference of the National Water Resources Association, wlUch consists primarily of the established water developmeDt interests in the West. It is traditional at the cODference to have the Commissioner of Reclamation answer questions from the audience. At the most recent cODfereDce, a water developer asked: "WheD there is more thaD ODe enviroDmentally souDd solutioD to a problem in water development, why does the Bureau of Reclamation always support the solution advocated by tbe Audobon Society, the Wildlife Federation, and other such groups?" Even ten years ago I would have found sucb a questioD astouDding. But that is a commOD view of developers today. Because of tlUs equalizatioD of power, we can start to look at other models for solving these conflicts. The model that I advocate, and suggest tbat we are moving towards, is the negotiated adaptive monagemellt model. First, in this model conllict is defined Dot as a legal violation, but as a divergence of interests and a competition of interests among parties. Therefore, the goal of the process is to find a way to meet the interests of the parties, rather tban just to meet tbe Deeds of the law. So anytbing is on tbe table if it's aD interest of a party. Secondly, it is important in this approach to have a lengthy pre-negotiation process. In the legal model there tends not to be much action and interchange between the parties until tbe lawsuit is filed. In tbe Degotiated adaplive management model it is important to try to get parties together who have competing interests, even if there is no critical legal problem yet. Many can be done althis stage. One is to start negotiating about the process for resolving disagreements. The parties can talk about what initial steps to take. Also, they can discuss anolher 2 important aspect [0 this approach, which lS the monitoring program. Tbis model recognizes that knowledge is always incomplete. So instead of trying to solve things forever in one shot, small steps are taken and initial actions implemeDted. Tbe results of tbese first steps are then monitored, and, if necessary, adjustments are made. Part of the Degotiation process is to Degotiate the process of monitoriDg and the process by which one can formulate Dew proposals and new actioDs in respoDse to changing conditions. Also a process for resolving disagreements is negotiated. AD example is the Platte River Management Study that has beeD going on for many years to address water developmeDt and environmental issues OD the Plate. The parties have beeD meeting regularly for several years, discussing issues, establishing a monitoring program, and are now just to the point of formulatiDg actions for implementation. In the newspaper recently was another example of a process that follows this model. It is the Gateways Project ror Rocky MouDtain National Park. People in the community surrouDding Rocky Mountain National Park have realized that they have SOme emerging conflicts about growth and impacts OD the Park. They have decided that they ought to get togetber DOW, start talking, and figure out ways to deal with those issues before there is a crisis. One or the other good thiDgs about this approach is tbat it recognizes that there are many parties and issues involved in tbese conflicts, not aU of whicb have legal standing. In the polilical world, all parties and all issues have to be recognized and SOme way fouDd to try to address them. The problems bave to be solved over the long term through approximation and adjustment. We never have enough knowledge to foresee consequeDces of actions far enough down the road to solve these things in ODe shot. There are some barriers to adopting a negotiated adaptive maDagement approach to problem solving, One is financial. It is difficult, for maDY reasons, to get funding for IDng,term Degotiation tbat mayor may DOt lead to anytlUDg, that doesn't have an immediate product, that doesn't solve the problem immediately, and iDvolves monitoring programs that may go on for an indefiDite period of time. It's hard to sell these tlUngs politically or get flDaDcial support. Results are not seen within the term of a congressperson, products are Dot easily defmed. And in many ageDcies and for many interests groups as well, the people who decide bow to solve connicts are attorneys. Their tendency is to go to Court especially when there is a history of success from going to court. Institutionally there are many difficulties. One is unclear jurisdiction. Prior to a problem becoming crystallized or formalized in a lawsuit, it is hard to know who is responsible for maDaging the problem. Usually it is shared among many eDlities, many agencies. Psychologists talk about the difrusion of responsibility as being an impediment to action..certainly that happens in these cases. Also, getting people to develop trust in a dispute