7965

• UCREFRP Catalog Number: 7965
• Author: Brown, C.
• Title: Handling Confrontation
• USFW Year: 1993.
• USFW - Doc Type: Negotiated Adaptive Management.
• Copyright Material: YES

River produces--because those values are not recognized in the
law. The only thing the law recognizes is the endangered species
and the impacts on those species. So we end up discussing and
formulating alternatives to address endangered species issues
when really we are interested in a much broader range of issues.
One party which will propose some way of meeting the
endangered species problem, which they think is the issue being
discussed, and then the other party is not happy because it
doesn't solve all the unnamed agenda items that are not on the
table. The result is confusion and fruslration.
Another problem with using the legal system to solve these
types of conflicts is that it often forces decisions before there is
sufficient knowledge to make the decision. The traditional
process involves listening to the evidence and making a decision--
that is the end of the process. Often judges are asked to assess,
and to rule on, the impact over the next twenty years of some
action on a species that is not fully understood, where the
variation in the environment and the species could be
considerable. The result is often poor decisions, or inflexible
solutions.
I am not advocating completely dismissing the legal systems
as an approach to these conflicts. Certainly the many successful
environmental lawsuits have served to bring to the attention of
powerful groups the environmental values they were impacting.
One of the strengths of the legal system is the protection it
provides less powerful groups. But things have changed. There is
now virtually an equilibrium between the power of environmental
groups and the traditional water-development groups. The
following is an example of such an equilibrium. Each year there
is a conference of the National Water Resources Association,
which consists primarily of the established water development
interests in the West. It is traditional at the conference to have
the Commissioner of Reclamation answer questions from the
audience. At the most recent conference, a water developer
asked: "When there is more than one environmentally sound
solution to a problem in water development, why does the
Bureau of Reclamation always support the solution advocated by
the Audobon Society, the Wildlife Federation, and other such
groups?" Even ten years ago I would have found such a question
astounding. But that is a common view of developers today.
Because of this equalization of power, we can start to look
at other models for solving these conflicts. The model that I
advocate, and suggest that we are moving towards, is the
negotiated adaptive management mode/.
First, in this model conflict is defined not as a legal violation,
but as a divergence of interests and a competition of interests
among parlies. Therefore, the goal of the process is to find a way
to meet the interests of the parties, rather than just to meet the
needs of the law. So anything is on the table if it's an 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
the lawsuit is filed. In the negotiated adaptive 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 at this 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 another

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important aspect to this approach, which is the monitoring
program.
This 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
implemented. The results of these first steps are then
monitored, and, if necessary, adjustments are made. Part of
the negotiation process is to negotiate the process of
monitoring and the process by which one can formulate new
proposals and new actions in response to changing
conditions. Also a process for resolving disagreements is
negotiated.
An example is the Platte River Management Study that
has been going on for many years to address water
development and environmental issues on the Plate. The
parties have been meeting regularly for several years,
discussing issues, establishing a monitoring program, and are
now just to the point of formulating actions for
implementation.
In the newspaper recently was another example of a
process that follows this model. It is the Gateways Project
for Rocky Mountain National Park. People in the community
surrounding Rocky Mountain National Park have realized
that they have some emerging conflicts about growth and
impacts on the Park. They have decided that they ought to
get together now, start talking, and figure out ways to deal
with those issues before there is a crisis.
One of the other good things about this approach is that
it recognizes that there are many parties and issues involved
in these conflicts, not all of which have legal standing. In the
political world, all parties and all issues have to be
recognized and some way found to try to address them. The
problems have to be solved over the long term through
approximation and adjustment. We never have enough
knowledge to foresee consequences of actions far enough
down the road to solve these things in one shot.
There are some barriers to adopting a negotiated
adaptive management approach to problem solving. One is
financial. It is difficult, for many reasons, to get funding for
long-term negoliation that mayor may not lead to anything,
that doesn't have an immediate product, that doesn't solve
the problem immediately, and involves monitoring programs
that may go on for an indefinite period of time. It's hard to
sell these things politically or get fmancial support. Results
are not seen within the term of a congress person, products
are not easily defined. And in many agencies and for many
interests groups as well, the people who decide how to solve
conflicts are attorneys. Their tendency is to go to court
especially when there is a history of success from going to
court.
Instilutionally there are many difficulties. One is unclear
jurisdiction. Prior to a problem becoming crystallized or
formalized in a lawsuil, it is hard to know who is responsible
for managing the problem. Usually it is shared among many
entities, many agencies. Psychologists talk about the diffusion
of responsibility as being an impedimenl to aClion--certainly
that happens in these cases.
Also, getting people to develop trust in a dispute