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Teach & Profess Life

by: Briana Anderson

Teach & Profess Life J 619

Briana Anderson
GPA 3.6


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This 67 page Class Notes was uploaded by Briana Anderson on Tuesday September 8, 2015. The Class Notes belongs to J 619 at University of Oregon taught by Staff in Fall. Since its upload, it has received 51 views. For similar materials see /class/187220/j-619-university-of-oregon in Journalism and Mass Communications at University of Oregon.

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Date Created: 09/08/15
MARTIN NIE Statutory Detail and Administrative Discretion in Public Lands Governance Arguments and Alternatives This Article explores a central question in public lands governance should Congress or bureaucracy be primarily responsible for resolving controversial political con icts over public lands management The question of institutional venue and decision making legitimacy is receiving increased attention due in part to a number of high pro le environmental con icts that have been managed through administrative rulemaking and resource planning processes like the United States Forest Service s USFS roadless rule and the issue of snowmobiles in Yellowstone National Park In short in what institutional venue should various issues and controversies in forest park rangeland and wildlife management be addressed Public land agencies are increasingly being asked to resolve controversial political issues using processes outlined in the Administrative Procedure Act APA1 the National Environmental Policy Act NEPA2 and various resource planning statutes This Article explores whether or not these types of issues should be answered by our public land agencies by our political representatives in Congress or through other institutional designs It is written as a primer of sorts one that I hope will be useful as more people begin debating this important question Public land policy reform is currently a popular topic with dozens of proposals seeking to change the land management regime in signi cant ways3 Important to most of those proposals however is the enduring tension between statutory detail and bureaucratic discretion in public lands management Questions pertaining to decision making authority legitimacy Associate professor of nat39uml resource policy College of Forestry and Conservation University of Montana Missoula MT 59812 A special thanks to Raymond Cross the staff and editors at JELL and the MclntireStennis Cooperative Forestry Research Program for its generous grant support The author may be reached at mnieforestryumtedu 1 Administrative Procedure Act 5 USC 551559 2000 2 National Environmental Policy Act 42 USC 4321 2000 3 See infra Part IVF 223 224 J ENVTL LAW AND LITIGATION Vol 192 2004 accountability and the most appropriate venue for con ict resolution must be at the forefront of this important discussion This Article proceeds in three parts Following the Introduction Part I provides an overview of our dominant public land laws including those governing forest park rangeland and wildlife management They are analyzed in terms of what they say and fail to say and why this matters from a con ict management standpoint The vagueness ambiguity contradiction and overeXtended commitments in some of these laws are the major reasons why administrative rulemaking and planning processes have become the dominant ways of dealing with public lands con ict Part II then reviews the political and philosophical debate over congressional delegation of authority and agency discretion as it applies to public landsbased political con ict Do our public land management agencies have too much managerial discretion Should Congress bureaucracy or some other governing arrangement resolve value and interestbased political disputes This part eXplores those questions by reviewing the case for and against statutory detail and administrative discretion This Article synthesizes the important work that has been done in that area and applies it to the problems and challenges of public lands governance Part III then sketches a broad options and alternatives framework Alternatives in prescriptive law administrative leadership and discretion decentralization comprehensive public land law review and policy experimentation are discussed and analyzed I make a cautious and quali ed argument that there is too much administrative discretion delegated to agencies and that Congress or other democratic institutions should resolve the essential value and interestbased political con icts over public lands management Public land agencies using rulemaking NEPA and planning processes are usually illequipped to resolve what are often deeply divisive and intractable political con icts They are not the most legitimate arbiters of the public good Instead our political representatives in Congress or reconstituted citizenbased democratic bodies should be making those choices But as illustrated throughout this Article that is easier said than done and the prescriptive cure might be worse than the disease A common response to this issue is I agree in principle that Congress should decideibut let s not have this Congress decide Related to this is the important distinction between political theory and practice Instead of pitting a romanticized legislative ideal Administrative Discretion in Public Lands Governance 225 against the modern administrative state we should contrast the latter with how legislative decisions are made in practice Once this is done our enthusiasm for congressional responsibility is dimmed and the statutory detail versus administrative discretion issue becomes more ofa Hobson s choice I STATUTORY GUIDANCE AND THE LACK THEREOF IN PUBLIC LANDS GOVERNANCE A Forest Monogement In making controversial decisions agencies look to their statutory mission and mandate for guiding principles or explicit instructions from Congress The 1897 Forest Service Organic Act for example states in part that no national forest shall be established except to improve and protect the forest within the boundaries or for the purpose of securing favorable conditions of water ows and to furnish a continuous supply of timber for the use and necessities of citizens of the United States 5 This broad mandates provides little resolution because some interest groups emphasize the protect and water ows provisions while others highlight the supply of timber component Superimposed on top of the Organic Act is the Multiple Use Sustained Yield Act of 1960 MUSYA8 Through MUSYA Congress formally articulated the multiple use mission of the service It is the policy of the Congress that the national forests are forest management review section is taken from Martin Nie Administrative Rulemaking and Public Lands Con ict The Forest Service s Roadless Rule 44 NAT RESOURCES J 687 2004 5 16USC 475 2000 6 What Congress intended by the USFS Organic Act has been open to some interpretation throughout the years Note that the language actually pus forth three urposes for the National Forests not just the commonly cited Water ows and supply of timber purposes And one would think that issues like wildlife would be impacted by the improve and protect the forest language found therein See United States v New Mexico 438 US 696 1978 Powell J dissenting in part discussing the intent of the USFS Organic Act to resolve a reserved Water righw dispute 7 See generally Alan G McQuillan Is National Forest Planning Incompatible With a Land Ethic 88 J FORESTRY 31 1990 discussing the contested purposes of the forest reserves and how preservationist John Muir would have emphasized the improve and protect the forest provision While USFS Chief Gifford Pinchot would more likely have stressed the nnish a continuous supply of timber provision s 16 use 528531 2000 226 J ENVTL LAW AND LITIGATION Vol 192 2004 established and shall be administered for outdoor recreation range timber watershed and wildlife and sh purposes 9 The Act de nes multiple use as 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 0 the American people ma ing e 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 that some land will be used for less than all of the resources and harmonious and coordinated management of the various resources each with the other without impairment of e productivity of the land with consideration being given to the relative values of the various resources and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output 10 This statutory language shows that there is relatively little in MUSYA directing or constraining forest managers11 They are to manage for multiple use and sustained yield the latter meaning the achievement and maintenance in perpetuity of a highlevel annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land 12 The contested language in MUSYA is easy to nd For instance what are the needs of the American people and what constitutes the most judicious use of the land What does providing due consideration of the relative values of the various resources in particular areas really mean13 More problematic is the Act s failure to specify the spatial scale for implementing multiple use either on a forestbyforest level or on a national forest system level14 This is 9 Id 528 10 Id 531 11 See generally Michael C Blumm Public Choice Theory and Public Lands Why W ltiple Use Failed 18 HARV ENVTL L REV 405 407 1994 Since multiple use is founded upon a standardless delegation of authority to managers of public lands and Waters congressional endorsement of multiple use has created the archetypal special interest legislation 12 16 Usc 531b 13 Id 529 14 A Society of American Foresters SAF review for example recommends that Congress should clearly articulate in new legislation that the concept of multiple use is not necessarily appropriate on every management unit but may be better applied in the aggregate across the national forests and public lands SOCIETY OF AMERICAN FORESTERs FOREST OF DISCORD OPTIONS FOR GOVERNING OUR NATIONAL FORESTs AND FEDERAL PUBLIC LANDs 5455 Donald W Floyd ed 1999 Administrative Discretion in Public Lands Governance 227 not to say that MUSYA says nothing of importance the multiple use mission later proved to be a major challenge for an agency that became focused primarily on dominant use timber production15 But its abstractness has been used by the USFS over the years to defend everything from designating 585 million acres as protected roadless areas to proposing an 87 billion board foot timber sale in the Tongass National Forest in Southeast Alaska Multiple uses could be complimentary and not contradictory according to the USFS For example it could embrace clearcutting as a way to provide bene cial openings for browsing game species and simultaneously achieve its timber wildlife and recreation hunting purposes17 The multiple use mandate was also used to justify the extensive clearcutting and terracing of hillsides in the Bitterroot National Forest in western Montana though many saw it as more akin to timber mining 18 That case provided one spark in what would eventually become the National Forest Management Act of 1976 NFMA19 It is primarily a planningbased statute calling for new interdisciplinary forest planning processes and expanded opportunities for public participation Some important prescriptions are also found in the Act including a limit on the size of clearcuts and a mandate to provide for diversity of plant and animal communities based on the suitability and capability of the speci c land area in order to meet overall multipleuse objectives 20 There has been a lot of debate in forestry policy and academic literature about NFMA s impact on forest management Some critics 15 DAVID A CLARY TIMBER AND THE FOREST SERVICE 156 1986 Clary provides a critical history of the USFS and is unique bureaucratic timberoriented culture as a case of public service wherein the servant believed rmly that it knew better than the public what the public really wanted Id at xii 16 See Sierra Club v Hardin 325 F Supp 99 104 D Alaska 1971 17 See generally PAUL W HIRT A CONSPIRACY OF OPTIMISM MANAGEMENT OF THE NATIONAL FORESTs SINCE WORLD WAR TWO 1994 18 The Bolle Report a major milestone in USFS history and requested by Senator Lee Metcalf of Montana aptly summarized the situation Multiple use managemeng in fact does not exist as the governing principle on the Bitterroot National Forest See A University View of the Forest Service A Select Committee of the University of Montana Presents Its Report on the Bitterroot National Forest Congressional Record November 18 1970 at 1 on le with author 19 16 USC 160014 2000 See Michael J Gippert amp Vincent L DeWitte The Nature of Land and Resource Management Flaming Under the National Forest ManagementAet 3 ENVTL L 149 1996 providing an overview ofthe NFMA 20 16 USC 16043B 228 J ENVTL LAW AND LITIGATION Vol 192 2004 contend that NFMA is a solution to a nonexistent problem 21 The Bitterroot and Monongahela22 cases had nothing to do with planning says Richard Behan so why solve these local sitespeci c problems with elaborate planning requirements23 Federico Cheever also argues that the forest management standards outlined in NFMA have failed to provide a signi cant check on USFS timber management practices because they have failed to communicate an intelligible message to the lawyers Forest Service officials and federal judges who initiate defend and resolve claims asserted under them24 This failure to communicate generally intelligible content says Cheever is a result of Congress s commitment to Forest Service discretion in the legislative process that gave us NFMA In a similar vein Michael Mortimer argues that the problems currently af icting the USFS result from Congress avoiding responsibility for difficult resource management decisions He places the blame on the goalbased statutes governing the USFS Congressional direction to the Forest Service has been less than specific affording little in the way of a concrete agency mission Consequently e Forest Service s attem ts at res urc management have been plagued by controversy and litigation ultimately imbuing the agency with a sort of administrative schizophrenia unable to identify or even recognize its mission27 On the other hand both Jack Tuholske and Beth Brennan argued a decade ago that this substantive environmental statute was beginning to ful ll its mandate28 They claim that it provides the direction the 21 RW Behan The RPANFIVM Solution to a Nonexistent Problem 885 J FORESTRY 2025 May 1990 22 The famous Monongahela decision by the Fourth Circuit ruled that the 1897 Organic Act effectively prohibited clearcutting in national foresw and this eventually led to the passage of NFMA Izaak Walton League v Butz 522 F2d 945 4th Cir 1975 See generally Charles F Wilkinson amp H Michael Anderson Land and Resource Planning in the National Forests 64 OR L REV 1 4142 7374 138 15455 1985 23 RICHARD W BEHAN PLUNDERED PROMISE 19394 2001 24 Federico Cheever Four Failed Forest Standards What We Can Learn from the History of the National Forest Management Act s Subsmntive Timber Management Provisions 77 OR L REV 601 605 1998 25 Id at 606 26 Michael J Mortimer The Delegation of LawMaking Authority to the United States Forest Service Implications in the Struggle for National Forest IlIanagement 54 ADMIN L REV 907 912 2002 27 Id at 910 28 Jack Tuholske amp Beth Brennan The National Forest IlIanagement Act hdicial Interpretation of a Substantive Environmental Smtute 15 PUB LAND L REV 53 130 1994 Administrative Discretion in Public Lands Governance 229 agency needs to adopt a more holistic and ecosystembased approach to forest management But for this to happen courts must be willing to see it as having substance enforce its underlying purpose and read and interpret the statute as a whole rather than analyze statutory sections in isolation from each other 29 Others like Charles Wilkinson believe that while NFMA struggles to nd a balance between statutory directives and agency discretion it has had a substantive and procedural impact on forest management and it is broadtextured and elastic enough to respond to future needs30 Another view argued by the late Arnold Bolle who played an important role in the Act s creation is that NFMA is a good law but that its intent has not been faithfully implemented by the USFS31 In short NFMA added a planning element to the forest management policies and multiple use mandates of the Organic Act and MUSYA It did not take away a lot of management authority from the USFS and it continues to be subject to a range of interpretations The tension between congressional prescription and agency discretion was very apparent in drafting the NFMA and the ensuing debate in Congress33 The USFS favored the planningbased NFMA bill sponsored by Senator Hubert Humphrey of Minnesota 34 and fought against the more prescriptive NFMA bill proposed by Senator Jennings Randolph of West Virginia35 Unlike Humphrey s version 29 Id at 134 30 Charles F Wilkinson The National Forest Management Act The Twenty Years Behind The Twenty Years Ahead 68 U COLO L REV 659 677 1997 31 Arnold W Bolle The Bitterroot Revisited39 A University ReView of the Forest Service in AMERICAN FORESTS NATURE CULTURE AND POLITICS 163 Char Miller ed 1997 arguing that NFMA is not the problem rather the problem is the USFS S business as usual response to NFMA 32 For example the Wilderness Society interprew NFMA as Congress recognizing the shortcomings of MUSYA S broad grant of discretion and sought to insure that timber production would not take priority over other uses and resources ELIZABETH BEAVER ET AL UNIVERSITY OF COLORADO NATURAL RESOURCES LAW CENTER SEEING THE FOREST SERVICE FOR THE TREES 13 2000 available at My d 39 39 39 quot 39 iReformszeportpdf last visited Nov 23 2004 quoting THE WILDERNESS SOCIETY AMERICA S NATIONAL FORESTS IN THE 21ST CENTURY 19 But the Society of American Foresters contends that neither the 1974 Forest and Rangeland Renewable Resources Act RPA or NFMA changed management philosophy in a Signi cant Way 1d at 14 33 See generally Wilkinson amp Anderson supra note 22 34 s 3091 94th Cong 1976 35 S 2926 94th Cong 1976 see generally Wilkinson amp Anderson swra note 22 at 4239 DENNIS C LE MASTER DECADE OF CHANGE THE REMAKING OF FOREST SERVICE STATUTORY AUTHORITY DURING THE 1970s 1984 230 J ENVTL LAW AND LITIGATION Vol 192 2004 the Randolph bill provided for comprehensive reform that prescribed numerous speci c standards for forest management with a particular focus on sh and wildlife habitat and evenaged management While the two sponsors agreed that timber production had taken priority over other forest values and that that needed to be xed they differed in how much discretion to give the USFS37 In the end some compromises were made and Humphrey included the NFMA diversity requirement into his bill that would eventually become law38 Diversity however was not de ned in the Act and it was up to the USFS to give this term meaning in their regulations The point of this statutory review is to illustrate the lack of eXplicit guidance in how the USFS should answer management questions that are value and interest based and political to the core The political might and leadership of Gifford Pinchot helps eXplain the broad mandate eXpressed in the 1897 Organic Act According to Federico Cheever Gifford Pinchot sought congressional support without congressional supervision and won it in the carte blanche given to him in the paradoxica USFS Organic Act40 It is in this statutory vacuum that Pinchot left his indelible signature on the Service41 MUSYA and NFMA also failed to answer the central philosophical questions regarding forest management This vacuum was instead lled by an opportunistic type of politics wherein the agency could promise everything to everyone in the name of intensive managemen and multiple use Unrealistic promises made to multiple use constituencies and an overeXtended commitment to intensive management would become the Agency s Achilles heel 36 s 2926 94th Cong 1976 37 Wilkinson amp Anderson supra note 22 at 29293 38 The provision requires the USFS to provide for diversity of plant and animal communities based on the suitability and capabili of the speci c land area in order to meet overall multipleuse objectives 16 USC 1604g3B 2000 39 USFS Planning regulations on sh and Wildlife resources state that habitat shall be managed to maintain viable populations of existing species 36 CFR 21919 See generally Michael A Padilla The Mouse That Roared How the National Forest ManagementAct Diversity of Species Provision is Changing Public Timber Harvesting 15 UCLA J ENVTL L amp POL Y 113 19961997 40 Federico Cheever The United States Forest Service and National Park Service Paradoxical llIandates Power l F ounders and the Rise and Fall of Agency Discretion 74 DENV U L REV 625 1997 41 See generally CHAR MILLER GIFFORD PJNCHOT AND THE MAKING OF MODERN ENVIRONMENTALISM 2001 Administrative Discretion in Public Lands Governance 231 according to historian Paul Hirt who views USFS history as a conspiracy of optimism 42 From Pinchot through NFMA the USFS has fought for maximum levels of administrative discretion and Congress has largely obliged As a result the venue of con ict has shifted from Congress to the administrative arena And while discretion once gave the USFS unencumbered authority to manage the public lands under the guise of scienti c management it now plagues the Agency in unending lawsuits and administrative appeals because many interest groups believe that the USFS s actions are inconsistent with congressional direction While professional foresters once fought to preserve their discretion many forest policy leaders are now calling for management priorities to be set through a political and legislative process43 A Society of American Foresters SAF review for example contends that the purposes of the national forests and public lands are no longer clear that the compleX and serious problems of national forest management cannot be resolved through regulatory reform or through the appropriations process and that new legislation is warranted 4 What about the hundreds of other laws regulations and court decisions constraining agency behavior The USFS has recently made analysis paralysis and the process predicament central to its case that the agency is forced to do more paperwork than onthe ground forest management these days The argument goes that while MUSYA and NFMA might give the USFS some discretion in theory it is lost upon the thick layering of other laws and regulations47 There is some truth to this claim both Congress and the Agency s own implementing regulations have added enormous procedural and analytical obligations But that does not change the 42 HIRT supra note 17 at xxi 43 See generally SOCIETY OF AMERICAN FORESTERS supra note 14 44 Id at 5051 45 See generally Forest Service Directives available at httpWWWfs fedusirn directives last visited Nov 21 2004 46 USDA Forest Service The Process Predicament How Statuton Regulatory and Administrative Factors A 39ect National Forest Management June 2002 available at httpWWW fs fedusprojectsdocumenSProcessPredicamentpdf last visited Nov 21 2004 47 See Con icting Laws and Regulations Gridlock on the National Forests Oversight Hearing Before the House Subcommittee on Forests and Forest Health of the Committee on Resmrces 107th Cong Dec 4 2001 Statement of Dale Bosworth Chief USDA Forest Service 232 J ENVTL LAW AND LITIGATION Vol 192 2004 basic argument made here Congress has passed additional substantive and mostly procedural laws while failing to confront the tough questions regarding forest management The agency still has discretion but it must now take numerous procedural steps to exercise it It is a case study in inefficient discretion Until Congress clari es the central purpose of our national forest lands and the core mission of the USFS procedural and decision making inef ciencies will be a fact of life48 B National Park Management The USFS situation is not atypicalisimilar patterns emerge in park politics The rst seeds of confusion were perhaps planted in the nineteenth century Congress created Yellowstone National Park in 1872 and dedicated it as a public park or pleasuring ground for the bene t and enjoyment of the people 49 Less noted is language giving exclusive control to the Secretary of the Interior whom shall make regulations providing for the preservation from injury or spoliation of all timber mineral deposits natural curiosities or wonders within the park and their retention in their natural condition 50 After the piecemeal creation of Yellowstone and other parks Congress tried to provide some general direction in the National Park Service NPS Organic Act of 1916 It declared that The service thus established shall promote and regulate the use of the Federal areas known as national parks monuments and reservatrons by such means and measures as conform to the funda ental purpose of the said parks monuments and reservatrons whrch ose rs to conserve the seen and the natural and historic Objects and the wild life therein and to provide 48 In an o encited report the General Accounting Of ce summarizes the decision making problem facing the Service Strengthening accountability for performance Within the Forest Service and improving the ef ciency and effectiveness of its decisionmaking is contingent on establishing longterm strategic goals that are based on clearly de ned mission priorities However agreement does not exist on the agency s longterm strategic goals This lack of agreement is the result of a more fundamental disagreemeng both inside and ouwide the Forest Service over which uses the agency is to emphasize under its broad multipleuse and sustainedyield mandate and how best to ensure the longterm sustainability of these uses US GENERAL ACCOUNTJNG OFFICE FOREST SERVICE DECISIONMAKING A FRAMEWORK FOR IMPROVING PERFORMANCE GAORCED97 71 at 5 1997 49 16 USC 21 2000 50 Id 22 Administrative Discretion in Public Lands Governance 233 for the enjoyment of the same in such manner and by such means as will leave 1them unimpaired for the enjoyment of future 5 generations Is the NPS Organic Act a contradictory mandate Some say that it is not when push comes to shove preservation rules Historian Robin Winks for example argues that despite the dif culties in ascertaining congressional intent the 1916 Act is not contradictory especially when we consider the gist of subsequent legislation52 and its judicial interpretation For him the mandate to conserve and leave resources unimpaired takes precedence over providing means of access and public enjoyment53 But others believe that the NPS s historical bias to recreational tourism has a statutory basis Park historian Richard West Sellars contends that tourism and public use have explicit congressional sanction This authority was strongly reaffirmed in the National Park Service Act of 1916 with its emphasis on public use Not only did Congress not challenge the Park Service s interpretation of the act during the ensuing decades but it also encouraged development and useiat times aggressively 54 51 Id 1 52 See eg National Park System General Authorities Act Pub L No 91383 1 84 Stat 825 1970 codi ed as amended at 16 USC 1a 139 The Redwood Act of 1978 Pub L No 95250 101b 92 Stat 166 codi ed as amended at 16 USC 1a 1 provides additional language for park managers In it Congress declares that These areas derive increased national dignity and recognition of their superb environmental quality through their inclusion jointly with each other in one national park system preserved and managed for the bene t and inspiration of all the people ofthe United States and that the Various areas ofthe National Park system shall be consistent with and founded in the purpose established by section 1 of this title to the common bene t of all the people of the United States The authorization of activities shall be construed and the protection management and administration of these areas shall be conducted in light of the high public Value and integrity of the National Park System and shall not be exercised in derogation of the Values and purposes for which these Various areas have been established except as may have been or shall be directly and speci cally provided by Congress 53 Robin W Winks The National Park Service Act of 1916 A Contradictory IlIandate 74 DENV U L REV 575 623 1997 RICHARD WEST SELLARs PRESERva NATURE IN THE NATIONAL PARKS A HISTORY 285 1997 The legislative history of the Organic Act provides no evidence that either Congress or those Who lobbied for the act sought a mandate for an exacting preservation of natural conditions An examination of the motivations and perceptions of the Park Service s founders reveals that their principal concerns were the preservation of scenery the economic bene ts of tourism and e cient management ofthe parks 234 J ENVTL LAW AND LITIGATION Vol 192 2004 Historians are not the only ones to differ on the meaning of the 1916 Act Different interests continue to cling to different language The controversy over banning snowmobiles in Yellowstone and Grand Teton National Parks and the John D Rockefeller Jr Memorial Parkway is a case in point Public letters written in response to the NPS s Winter Use Plan Supplemental Environmental Impact Statement illustrate how differently this park mandate is interpreted by various political actors The Montana Tourism Coalition writes that We are Opposed to the ban because it eliminates yet another access possibility for the people of the United States At what point does Yellowstone become a wilderness ecosystem that can only be viewed from outside a bubble Our forefathers intentions were clear when they said Yellowstone National Park was create as a public park or pleasuringground for the benefit and enjoyment of the people In order for the public to understand nature they need to see hear feel smell and taste it Turning these parks into de facto wilderness areas is a concern for other groups The American Council of Snowmobile Associations writes that it is mindboggling to think that The People s Park is actually being turned into Wilderness which will eventually allow no entrance to the rst and one of the most fascinating National Parks in our Country Citizens for a User Friendly Forest with the motto Red Meat Board Feet Dig Deep Drive Jeep notes that the fundamental purpose of the Park is to conserve park resources and values while providing for the enjoyment of those resources and values by the American people The dual purpose is coequal neither is more important than the other 57 Those in favor of the ban also cite the Organic Act and other relevant policies to make their case The Alliance for the Wild Rockies writes that the NPS Organic Act and numerous NPS Management Policies clearly illustrate that when presented with a con ict between resource protection and any other interests Id at 29 Sellars also suggests the park founders assumed that in effecg undeveloped lands were unimpaired landsithat Where there was little or no development natural conditions existed and need not be of special concern The ongoing manipulation of the parks backcountry resources such as sh foresw and Wildlife seems not to have been viewed as impairing natural conditions Id at 45 55 NATIONAL PARK SERVICE WINTER USE PLANS FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT VOL 2 130 2003 56 Id at 114 57 Id at 122 Administrative Discretion in Public Lands Governance 235 resource conservation is to be predominant Therefore snowmobiling which has been irrefutably shown to cause resource degradation and pose human health risks must be stopped 58 Comments of the Greater Yellowstone Coalition Natural Resources Defense Council The Wilderness Society Defenders of Wildlife Sierra Club the Wyoming Outdoor Council and other groups make the 1916 Organic Act and its prohibition on impairment central to their case against snowmobiling in the Park They note the following The Park Service duty under governing law regulation and policy is to assure that national park resources are protected in an unimpaired state for the benefit and enjoyment of this and future generations The NPS mission was clearly elucidated by Congress and has reaffirmed over the years In Yellowstone and Grand Teton National Parks the highest standard of protectioniOrganic Act prohibition on impairmentiis violated by snowmobile use The intent of Congress was to preserve the scenery natural objects and wildlife of the National Parks The courts have time and again interpreted the Organic Act as holding conservation of park resources preeminent over enjoyment of them visitor use must not cause impairment of park resources and values59 The vacuum left by Congress and the Organic Act has been lled with various agency interpretations and management philosophies60 The NPS has historically prioritized its public use obligation over preservation as a way to build a supportive constituency This helps eXplain its cozy relationship to the railroad industry the elimination of wolves suppression of re introduction of exotic game and sh species and the road building frenzy of Mission 66 This industrial recreation model could be defended using the Organic Act but so too could the preservationist philosophy espoused in the in uential Leopold Report recommending the preservation and restoration of natural conditions so that national parks can represent a Vignette of primitive America 1 Both approaches to park management were somehow squared with the NPS s mandate This contested language often leaves the NPS in politically dangerous territory What happens when former Interior Secretary 58 Id at 140 59 Id at 15758 60 For a few thoughtful discussions of these philosophies and management approaches see generally SELLARS mpra note 5439 WILLIAM R LOWRY THE CAPACITY FOR WONDER 1994 ALFRED RUNTE NATIONAL PARKS THE AMERICAN EXPERIENCE 2d ed 1987 JOSEPH L SAX MOUNTAINS WITHOUT HANDRAILS 1980 61 See Robert B Keiter Preserving Nature in the National Parks Law Policy and Science in a Dynamic Environment 74 DENV U L REV 649 656 1997 236 J ENVTL LAW AND LITIGATION Vol 192 2004 James Watt claims that if I err I m going to be ening on the people side and the NPS Director William Penn Mott claims that we must err on the side of preservation 62 Committed agency personnel are often caught in the cross re Some park visitors also feel discontent for they believe that the NPS is not ful lling its mandate to either preserve the resource or provide maximum recreational opportunities This paradoxical mandate has a history similar to that of Pinchot and the USFS Cheever s analysis is that Stephen Mather the rst Director of the NPS fought for enthusiastic congressional support of the national parks without congressional participation in their management and won it in the carte blanche given to him in the Organic Acts3 The problem says Cheever is that these broad mandates given to Pinchot and Mather for pursuing their own vision and philosophy now allow interest groups to project their visions onto the congressional mandates 4 In short times have changed ambiguity which once provided agencies necessary latitude before Congress and the Cabinet now inspire sophisticated western interest groups to challenge agency policy Mandates which once contributed to the rise of agency discretion now contribute to its decline 65 Politics and con ict are also driven by individually tailored establishment statutes governing speci c park units While the Organic Act provides an overarching mandate for the NPS Congress has increasingly provided speci c management standards and obligations in parkbypark establishment legislation67 This means that organic legislation applies to all park system units to the extent that it does not con ict with provisions speci cally applicable to them68 Many substantive and procedural mandates and exemptions are written into laws pertaining to one particular management unit Examples include provisions allowing grazing topics that must be addressed in general management plans consultation requirements and the creation of advisory commissions 62 William R Lowry National Parks Policy in WESTERN PUBLIC LANDS AND ENVIRONMENTAL POLITICS 182 Charles Davis ed 2d ed 2001 63 Cheever SW11 note 40 at 633 64 Id at 640 65 Id at 630 66 See generally Robert Fischman T he Problem of Statutory Detail in National Park Establishment Legirkition and itx Relationxhip to Pollution Control Law 74 DENv U L REV 779 787789 1997 describing the general trend in Congress in providing greater statutory detail in pollution control law and park establishment legislation 67 16 use 10 2000 68 Id lcb Administrative Discretion in Public Lands Governance 237 Establishment legislation while often overlooked is important for a number of reasons69 First it shows the increasing tendency and ability of Congress to get involved in the details of public lands management As discussed later this can be seen as either a positive or negative development For instance while it places more responsibility and accountability on our elected representatives it can also hamper comprehensive planning and dilute the importance of administrative and scienti c expertise Establishment legislation can also exacerbate park con icts not only is the NPS supposed to nd the right tension between preservation and recreation but in some cases it must also work in the particular and sometimes contradictory uses and exemptions which are expressed in individualized park statutes We might also look at the park situation for lessons in public lands governance It illustrates that making changes in an agency s organic act will not necessarily lead to changes on the ground because some public land units are also governed by unique establishment laws70 The situation could also foreshadow what might happen if Congress attempts to experiment with sitespeci c legislation governing one national forest or other land unit The drawback of such an approach is that a public lands system would become less cohesive integrated and uni ed Instead we would get a balkanized patchwork that would make it difficult to understand the essential purpose of our national parks The upside however is that individualized statutes might provide a way to protect places that would not otherwise be included in the national park system In other words the next era of place protection will be more difficult than the last and it will require new ways of thinking and models of governance C Rangeltmd Management The amount of land managed by the Bureau of Land Management BLM illustrates the importance of this Agency s statutory mission and mandate It manages 262 million acres of landiroughly one eighth of the USiand another 300 million acres of subsurface 69 See Fischman 5147M note 66 at 78186 70 See id at 782 An examination of establishment legislation reveals that simple clari cation of the Organic Act to stress the preservation prong of the Service s dual mandate or even amending the Organic Act to embmce explicitly biological diversity would not be suf cient to achieve comprehensive reform Establishment legislation which guides the management and planning for individual parks would also need to be revisited Id 238 J ENVTL LAW AND LITIGATION Vol 192 2004 mineral resources71 It primarily manages these lands according to the Federal Land Policy Management Act FLPMA of 197672 This Act is referred to as the BLM Organic Act because it consolidated and articulated the Agency s mission and management responsibilities Added on top of FLPMA was the Public Rangelands Improvement Act of 1978 PRIA73 This Act eXpressed concern about the productive potential and unsatisfactory condition of public rangelands and it declared a national policy for improving the range Speci cally it outlined steps to improve the range including record keeping requirements increased funding for range improvement and a new grazing fee formula FLPMA says a number of important things7 First it eXplicitly states that the public lands be retained in Federal ownership 75 thus sending an unequivocal message to those advocating the release of federal lands to state or private ownership It also states that management be on the basis of multiple use and sustained yield unless otherwise speci ed by law 76 Congress also stated what it meant by the term multiple use 4 The term multiple use means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future 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 the use of some land for less than all of the resources a combination of balanced and diverse resource uses that takes into account the longterm needs of future generations for renewable and nonrenewable resources including but not limited to recreation range timber minerals watershed wildlife and fish an natural scenic scientific and historical values and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with 71 BUREAU OF LAND MANAGEMENT PUBch LAND STATISTICS Table 14 2002 available at WWWblmgovnatacqpls02plsl4702pdf last visited Nov 21 2004 72 43 Usc 1701 2000 73 1d 19011908 74 See generally George C Coggins The Law of Public Rangeland Management 1V FLPllM PRIA and the Multiple Use Mandate l4 ENVTL L 1 1983 analyzing FLPMA and its planning requirements 75 43 Usc 1701al 76 Id 1701a7 FLPMA reaf rmed the principle of multiple use and sustained yield originally found in the Classi cation and Multiple Use Act CMU Act of 1964 Pub L No 88607 78 Stat 986 1964 expired 1970 Administrative Discretion in Public Lands Governance 239 consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output The term sustained yield means the achievement and maintenance in perpetuity of a highlevel annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use 78 Elsewhere in the Act and after the mandate to protect various environmental historical and archeological values Congress added that the public lands be managed in a manner which recognizes the Nation s need for domestic sources of minerals food timber and ber from the public lands 7 One way of thinking about FLPMA is that Congress once again chose agency discretion in the form of planning rather than making explicit choices80 Instead of providing clear unequivocal guidance in the form of prescriptive law Congress provided an array of criteria to be incorporated or merely considered in the development and revision of landuse plans Multiple use and sustained yield principles would be achieved for example by using a systematic interdisciplinary approach to achieve integrated consideration of physical biological economic and other sciences 81 Discretion was also provided by simply asking the BLM to consider the present and potential uses of the public lands 82 and the relative scarcity of the values involved 83 Additionally the BLM was asked to rely to the extent it is available on the inventory of the public lands their resources and other values 84 and to weigh longterm bene ts to the public against shortterm bene ts Some stronger language is also provided like the directions to give priority to the designation and 77 43 use 1702c 78 Id 1702h 79 Id l701a12 80 See generally ROBERT L GLICKSMAN amp GEORGE CAMERON COGGINS MODERN PUBLIC LAND LAW 223 1995 contending that the statute lacks both procedural and substantive standards particularly when compared with the NFMA Marla E Mans eld A Primer ofPublie LandLaw 68 WASH L REV 801 834 1993 contending that FLPMA embodies a truce because it directed the BLM to consider disparate Values in furthering the national interest Without demanding a speci c result 81 43 use 1712c2 82 Id 1712c5 83 Id 1712c6 84 Id 1712c4 8s Id 1712c7 240 J ENVTL LAW AND LITIGATION Vol 192 2004 protection of areas of critical environmental concern 86 provide for compliance with applicable pollution control laws 87 and to coordinate planning processes with other governments88 But other than the pollution control requirement which can be quanti ed and monitored and perhaps the priority given to areas of critical environmental concern those criteria leave a statutory vacuum which is lled by the BLM using its planning process Also noteworthy due to the controversies surrounding its meaning is the discretionary power given to the Secretary of the Interior to take any action necessary to prevent unnecessary or undue degradation of the lanals 89 Predictably of course over the years such a standard has swung widely from one presidential administration and solicitor s opinion to another90 After all major decisions pertaining to grazing mining and even sacred site protection depends in large part on whether the emphasis is placed on the unnecessary or undue prongs of this sentence 1 FLPMA is speci c and detailed in many ways especially when it comes to how decisions are to be made92 It says much less however about what decisions have actually been made by Congress As one court put it FLPMA and PRIA provide broad declarations of policy and goals and eXpress a concern and desire for range improvement but their language breathes discretion at every pore 93 The broad statutory language leaves the BLM open to agency capture 94 and 86 Id l712c3 87 Id 1712c8 38 Id l712c9 89 Id 1732b emphasis added 90 See Sandra B Zellrner Sustaining Geographies of Hope Cultural Resources on Public Lands 73 U COLO L REV 413 46869 2002 analyzing such swings of interpretation as they apply to cultuml resources management on public lands 91 1d 92 Bureau of Land Management Us Department of Interior The Federal Land Policy andManagementAct httpWWWblmgov pma last visited Nov 21 2004 93 Natural Res Def Council Inc v Hodel 624 F Supp 1045 1058 D Nev 1985 In this case Judge Burns states that the broad discretionary language found in these laws does not provide helpful standards a court can use to adjudicate agency compliance He also poinw his nger at our elected branches of government for Why judges have become masters of various policy areas At bottom however the primary reason for the large scale unwillingness of the rst two branches of our governmentiboth state and federali to fashion solutions for signi cant societal environmental and economic problems in America Id at 1063 94 See generally GRANT MCCONNELL PRIVATE POWER AND AMERICAN DEMOCRACY Ch 7 1966 PHILLIP O Foss POLITICS AND GRAss 1960 Administrative Discretion in Public Lands Governance 241 provides ammunition for various interest groups Conservationists for example cite various studies and statistics documenting what they believe is dominant use not multiple use of public rangelands that livestock grazing is allowed on 254 million acres of national forest and BLM land and on these lands roughly 26300 ranchers graze 32 million cattle96 that 94 percent of BLM lands in siXteen western states are grazed and that 35 percent of federal wilderness areas have active livestock grazing allotments97 How is this multiple use they ask FLPMA can also be used to defend a much different landscape vision than the one embraced by the BLM Public lands ranching critic and law professor Debra Donahue for example argues that the various management guidelines in FLPMA are compatible with a policy decision to preserve biodiversity across landscapes 98 But public land ranchers and their supporters can also point to the multiple use mandate and the nation s need for domestic sources of food language to make their case And where does it say anything in FLPMA about ranching being inimical to biodiversity and recreation FLPMA s discretionary language has resulted in another policy vacuum lled by executivelevel politics President Clinton embracing the environmental historical and cultural language of FLPMA tried to bring the BLM out of its dominant use past by designating new monuments and adding management responsibilities eg the Grand StaircaseEscalante National Monument99 President 95 See generally Kelly Nolen Residents at Risk Wildlife and the Bureau of Land ilIanagement s Flaming Process 26 ENVTL L 771 1996 The BLM S Vague mandate to manage lands for multiple uses also provides the agency with a great deal of discretion in making management decisions and leaves it vulnemble to pressure from consumptive users Who Want the agency to favor their preferred use Id at 77677 Among other things Nolen recommends amending FLPMA to provide greater guidance to BLM in is planning and management effors 1d at 837 96 Paul Rogers amp Jennifer LaFleur The Giveaway of the West SAN JOSE MERCURY NEWS Nov 7 1999 at 15 97 Thomas L Fleischner Ecological Costs of Livestock Grazing in Western North America 8 CONSERVATION BIOLOGY 629 630 199 98 DEBRA L DONAHUE THE WESTERN RANGE REVIst 206 1999 Several parts of FLPMA are important in this regard She Says including is admonition to consider the relative Values of resources is focus on the present and future needs of the American people and the absence of any mention of local needs its inclusion of natuml scenic scienti c and historical Values and the direction to manage all resources Without impairing the land s productivity or environmental quality among others 1d 99 See generally Sanj ay Ranchod The Clinton National Momments Protecting Ecosystems With the Antiquities Act 25 HARV ENVTL L REV 535 571 2001 The 242 J ENVTL LAW AND LITIGATION Vol 192 2004 Bush on the other hand embraces the nation s needs language in defending his expansive extractive use agenda100 The vacuum is then further lled as these interpretations and agendas are challenged in court D Fish and Wilt ife Management The US Fish and Wildlife Service USFWS has regulatory authority over the agencies discussed above and must therefore deal with the full array of public lands and resources law But two laws the 1997 National Wildlife Refuge System Improvement Act Improvement Act and the 1973 Endangered Species Act ESA are particularly important for purposes here and are discussed below I The National Wildlife Refuge System Improvementlet I997 The 1997 Improvement Act101 an amendment to the National Wildlife Refuge System Administration Act of 1966102 is the most recent organic legislation for a public lands system The National Wildlife Refuge System while far ung and fragmented compared to other systems is the nation s largest network of lands and most diverse array of ecosystems dedicated principally to nature protection 103 As Robert L Fischman eXplains there is a lot that can be learned from the Improvement Act partly due to how it differs from other multiple use public land laws104 A few things are worth quickly pointing out First it is a dominant use statute that is geared toward the protection of nature Second activities like recreation oil and gas development and grazing may occur generally only to the eXtent that they are compatible with this dominant use Note however that the compatibility standard still Clinton monument designations are a conscious effort to force a tremendous shi in the agency toward management for lighter extmctive uses compatible with conservation aims 100 See eg National Energy Policy Development Group National Energy Policy May 2001 available at httpWWWWhitehousegovenergyNationalEnergyPolicypdf last visited Nov 21 2004 101 16USC 668dd 2000 102 1d 668dd668ee 103 Robert L Fischman The National Wildlife Re xge System and the Hallmarks of Modem Organic Legislation 29 ECOLOGY LQ 457 458 2002 104 ROBERT L FISCHMAN THE NATIONAL WILDLIFE REFUGEs 2003 The Re ige System s ecological management criteria the con icw between primary and subsidiary uses and the tension between sitespeci c standards and uniform national goals all offer important lessons for environmental governance generally 1d at Administrative Discretion in Public Lands Governance 243 grants quite a bit of discretion to the USFWS based on its sound professional judgment 105 Third the Act builds on a tiered and hierarchical use framework ranging from highest to lowest priority This means that individual refuge purposes come before conservation conservation comes before wildlife dependent recreation eg hunting and shing and wildlife dependent recreation comes before other recreational uses and economic activities Congress was quite clear moreover in stating that hunting and shing when practiced in accordance with sound sh and wildlife management are eXpected to continue to be generally compatible uses 1 6 Finally and perhaps most important is the amount of statutory detail and substantive management criteria provided in the Improvement Act This criteria along with planning and participation requirements includes compatibility maintenance of biological integrity diversity and environmental health acquisition of sufficient water rights biological monitoring and a general conservation stewardship mandate107 According to Fischman the greater statutory detail and more binding management prescriptions in the 1997 Act as compared with earlier organic legislation re ects Congress greater interest in controlling public land management 108 These substantive management criterion not only limit agency discretion but they also provide a foothold for litigation They are also more speci c than those pertaining to National Park and BLM lands and even parts of NFMA109 Put simply the choices made and standards expressed in the Improvement Act demonstrate the willingness and ability of Congress to provide a greater degree of statutory detail But the Improvement Act does not resolve all of the issues and con icts related to wildlife refuge management Like the NPS situation refuges have two sets of purposes those articulated in the Improvement Act and the speci c purposes for which each refuge was created by Congress There is thus a dual and potentially con ictual nature of the refuge system In passing the Improvement Act Congress sought to better integrate the system with an overarching statutory mission while at the same time giving priority to speci c refuge purposes And if a con ict exists The con ict shall be resolved in a manner that rst protects the 105 16USC 668dd51 106 Id 668dd 2X6 107 Fischman Wm note 103 at 544 108 Id at 545 109 FISCHMAN mum note 104 at 110 244 J ENVTL LAW AND LITIGATION Vol 192 2004 purposes of the refuge and to the extent practicable that also achieves the mission of the System 110 The Improvement Act as Fischman explains neglects to harmonize the underlying discord among the various units of the System 111 and re ects the continual struggle to counteract the centrifugal divergent push of establishment mandates with the centripetal coordinating pull of systemic management 112 For this reason Fischman cautions that organic legislation is no panacea for public land systems with divergent individual unit establishment mandates 113 As will be discussed later this issue is of upmost importance to public lands governance for many management units are governed under a common organic act and statutory framework while sometimes also governed by individually tailored charters established by Congress 2 The Endangered Species Act 1973 Although not without its share of discretionary language the ESA is also more detailed and speci c than other public land and resources law Its implementation by the US Fish and Wildlife Service USFWS and the National Marine Fisheries Service NMFS also known as NOAA Fisheries is an important part of many environmental con icts The infamous snail darterTellico Dam case the northern spotted owl the redcockaded woodpecker carnivore reintroduction and management including wolves grizzly bears and lynX salmon restoration in the Paci c Northwest and the Klamath River Basin controversy are but a few high pro le cases illustrating the impact and controversy surrounding the BSA The US Supreme Court has described the BSA as the most comprehensive legislation for the preservation of endangered species ever enacted by any nation 114 The ESA s strict substantive provisions how they have been implemented or not implemented by the USFWS and Fisheries how they have been used by environmental interest groups and how they have been interpreted by the courts provides another helpful case in working our way through arguments for and against administrative and legislative control 110 16 USC 668dda4d 111 Fischman Wm note 103 at 618 112 Id at 462 113 Id at 464 114 Tennessee Valley Auth v Hill 437 US 153 180 1978 Administrative Discretion in Public Lands Governance 245 The purpose of the ESA is to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved 115 An endangered species is de ned as any species which is in danger of eXtinction throughout all or a signi cant portion of its range 116 while a threatened species means any species which is likely to become an endangered species within the f 39 39 future 39 39 all or a 39 T portion of its range 117 To conserve means to use all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary 118 The signi cant portion of its range concept is a bit trickier and has become part of the science wars over the ESA This concept was recently dealt with in Defenders of Wildlife v Norton119 In that case the Ninth Circuit provided the Secretary of the Interior some discretion in giving the concept meaning since it is not de ned in the statute nor entirely clear from congressional intent120 This concept has gained renewed attention as con icts and litigation focus on the downlisting and delisting of wolves and grizzly bears Of course what Congress meant by these terms and what they intended with the BSA in general is subject to debate Shannon Petersen argues that the ESA has had unanticipated consequences121 In tracing its legislative history he concludes that Congress did not intend to pass a law that would protect seemingly insigni cant species irrespective of economic considerations halt federal development projects and regulate private property 122 Instead he says that most in Congress believed the Act to be a largely symbolic effort to protect charismatic megafauna representative of our national heritage like bald eagles bison and grizzly bears Congress believed it could accomplish this simply by preventing the direct us 16USC 1531b 116 Id 15326 117 Id 153220 118 Id 15323 119 258 F3d 1136 9th Cir 2001 120 See Linda C Maranzana Defenders of Wildlife v Norton A Closer Look at the Signi cant Portion of Its Range Concept 29 ECOLOGY LQ 263 2002 assessing the extent of this discretion 121 Shannon Petersen Commeng Congress and Charismatic Megafauna A Legislative History of the Endangered SpeciesAct 29 ENVTL L 463 466 1999 122 Id at 46667 246 J ENVTL LAW AND LITIGATION Vol 192 2004 killing of endarigsered species and by halting the international trade in such species Despite congressional intentions Petersen says the ESA became the pit bull of environmental laws due to two factors First Congress and affected interest groups lacked the foresight to see how the statute s plain language would later be used to put obscure species on the list without economic consideration and to stop federal development projects124 Second scienti c developments after 1973 including work in ecology and the whole idea of biodiversity presented an entirely different understanding of what it meant to take or jeopardize a species In 1973 it would have been difficult if not impossible for Congress to anticipate such a fundamental change in circumstances says Petersen125 Sections 4 7 and 9 are the ESA s foundation In Section 4 the Secretary of the Interior directing the USFWS or Secretary of Commerce directing Fisheries is required to list species as either threatened or endangered solely on the basis of the best scienti c and commercial data available 126 This means that economic factors cannot be considered at the listing stage Section 7 directs federal agencies to consult with the Secretary to ensure that any action authorized funded or cariied out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species 127 Section 9 prohibits the taking of endangered species128 de ned as to harass harm pursue hunt shoot wound kill trap capture or collect or to attempt to engage in any such conduct 129 It was left to the Secretary of the Interior to provide meaning to these terms He did so by promulgating a regulation de ning the term harm to include habitat modi cation or degradation 130 This de nition has proven to be very controversial because it gives the 123 Id at 467 124 1d 125 1d 126 16 use 1533b1A2000 127 Id 1536a2 128 Id 1538a 129 Id 153219 130 The regulations de ne harm as An act which actually injures or kills Wildlife Such acts may include signi cant habitat modi cation or degradation Where it actually kills or injures wildlife by signi cantly impairing essential behavioral patterns including breeding feeding or sheltering 50 CFR 173 2003 see Palila v Hawaii Dep t of Land amp Nat Res 852 F2d 1106 9th Cir 1988 upholding the lower court s ruling that habitat destruction that could result in extinction is a taking Administrative Discretion in Public Lands Governance 247 USFWS and Fisheries the power to limit and regulate various land use activities and thus sparked enduring debates over land management private property rights and government takings The relatively straightforward and prohibitive language found in Sections 4 7 and 9 help eXplain much of the acrimony over the ESA131 This is not empty rhetoric devoid of meaning and direction Courts have made that abundantly clear through the years starting with the Supreme Court s reading of Section 7 as applied to the snail darterTellico dam case in Tennessee Valley Authority v Hill in 1978132 Here the Court held that Section 7 prohibited the completion of the Tellico dam on the Little Tennessee River because it would have jeopardized the snail darter a threeinch perch listed by the FWS as endangered in 1975 Writing for the majority Chief Justice Burger reasoned that one would be hard pressed to nd a statutory provision whose terms were any plainer than those in section 7 and that plain intent is found in literally every section of the statute to halt and reverse the trend toward species extinction whatever the cost 133 The message sent by TVA was not lost on the environmental community who have continued to use the BSA as a political battering ram legal monkeywrench and tool for institutional disruption 1 4 Though the ESA is full of plain language it also has its share of vagueness and ambiguity Due to its original language and the subsequent amendments to the ESA the FWS and Fisheries have signi cant managerial discretion in some areas The contentious issue of designating critical habitat provides a good example The 1973 version of the ESA referenced it only once directing federal agencies to ensure that actions authorized funded or carried out by them do not jeopardize the continued existence of endangered species and threatened species or result in the destruction or modi cation of 131 See generally Oliver A Houck On the Law of Biodiversity and Ecosystem llIanagement 81 MINN L REV 869 872 1997 Indeed it might be said that the ESA is in trouble today not because it fails to address diversity and ecosystems but instead because it is beginning to address them too well JOHN COPELAND NAGLE amp J B RUHL THE LAW OF BIODIVERSITY AND ECOSYSTEM MANAGEMENT 117 2002 reviewing the unparalleled stringency of the ESA s provisions 132 437 US 153 1978 133 Id at 173 134 Christopher McGrory Klyza amp David J Sousa Creating Chaos The Endangered Species Act and the Politics of Institutional Disruption paper presented at the Annual Meeting of the Western Political Science Association March 1517 2001 Las Vegas NV on le with author 248 J ENVTL LAW AND LITIGATION VOL 192 2004 habitat of such species Which is determined by the Secretary after consultation as appropriate with the affected States to be critical 135 Congress neither de ned nor explained what was meant by these key terms in 1973 so the Secretary of the Interior had to esh them out in various regulations and guidelines Congress entered the fray again by providing additional qualifying and discretionary language in the ESA s 1978 amendment The Secretary of the Interior is now able to designate critical habitat to the maximum extent prudent and determinable 137 Predictably the parsing determination and designation of critical habitat has been politically agonizing138 According to Michael Bean and Melanie Rowland it remains one of the Act s most contentious ambiguous and confusing concepts with no clear consistent and shared understanding of what it means or what role it is to play in the Act s administration 139 Moreover Congress has obscured rather than clari ed the concept and the courts have never given more than super cial attention to the duties that arise from the designation of critical habitat 140 This means that Congress and the courts have placed the USFWS and Fisheries at the center of the political con icts over critical habitat designation How they have handled this responsibility has generally angered the environmental community For example using the maximum extent prudent and determinable language the Congressional Research Service found that the USFWS designated critical habitat for only about 10 percent of listed domestic species and that the Agency lost every case brought against them for failure to designate critical habitat141 Congress has also explicitly chosen to give these agencies more managerial discretion in Section 10139 of the ESA142 added in the 1982 amendments This provision gives the Secretary of the Interior 135 Pub L No 93205 7 1973 emphasis added 136 MICHAEL J BEAN amp MELANIE J ROWLAND THE EVOLUTION OF NATIONAL WILDLIFE LAW 25162 3d ed 1997 providing ahistory of the critical habitat issue 137 16 use 1533a3A 2000 138 See generally Oliver A Houck T he Endangered Species Act andIts Implementation by the US Departments ofInterior andCommerce 64 U COLO L REV 277 297 1993 139 BEAN amp ROWLAND supra note 136 at 251 140 1 at 252 141 M Lynne Corn Cong Research Serv Endangered Species Con ming Controversy Issue Brief 1310009 Nov 21 2000 With other cases pending as of 1999 the brief also states that in 1999 the FWS placed critical habitat designation at the lowest priority in its listing budget 142 16 use 15390 Administrative Discretion in Public Lands Governance 249 the ability to list some endangered species as experimental non essential populations meaning that they can be managed as threatened instead of endangered To do so various requirements need to be met like having the experimental population wholly separate geographically from nonexperimental populations of the same species 143 This provision was added as a way to give the USFWS more latitude and exibility in its management of endangered species It has done so but it has also caused a great deal of controversy as illustrated by the reintroduction of wolves into Yellowstone National Park and Idaho as experimental populations in the mid1990s 1 Some environmental groups argued that this provision as applied to wolves runs counter to the intent and obligations inherent in the BSA and that the USFWS would simply use its discretion to appease ranchers145 Others supporting the experimental designation argued that it provided the USFWS the managerial exibility needed to maneuver in a complicated and divisive political environment and that in the end it is not the intent of the Act that matters most but its successful implementation Assessing public land law in terms of legislative versus administrative control requires that we distinguish between the statute and its implementation This distinction between good or bad law and good or bad implementation is important and is a distinction that runs through public land law in general With the ESA Daniel Rohlf takes issue with the former and its administrative interpretation146 Much of Daniel Rohlf s criticism is directed at the biological de ciencies of the ESA For example what constitutes in danger of extinction The ESA does not clearly de ne or speci cally describe its security 143 Id 1539j1 The meaning of this language was also contested during the reintroduction of Wolves into Yellowstone National Park The case eventually ended up in litigation as some environmental and Wise use groups argued unsuccessfully that these reintroduced Wolf populations Were not Wholly separate geographically from another endangered Wolf population in the region See Wyo Farm Bureau Fed n v Babbitg 987 F Supp 1349 DWyo 1997 The Tenth Circuit disagreed and argued that Congress did not specify What it meant by Wholly separate geographically and thus 1e is interpretation to the FWS It also reminded plaintiffs that Congress added section 10j as a Way to provide additional exibility and discretion in managing reintroduction efforts See Wyo Farm Bureau Fed n V Babbitt 199 F3d 1224 123436 10th Cir 2000 144 See generally MARTJN A NEE BEYOND WOLVES THE POLITICS OF WOLF RECOVERY AND MANAGEMENT 2003 145 See Dale D Goble Of Wolves and Welfare Ranching 16 HARV ENVTL L REV 101 1992 146 See Daniel J Rohlf Six Biological Reasons Why the Endangered Species Act Doesn t WorkiAnd What to Do AboutIt 53 CONSERVATION BIOLOGY 273 1991 250 J ENVTL LAW AND LITIGATION Vol 192 2004 standard says Rohlf meaning the degree of security afforded to species by the Act varies according to discretionary ad hoc determinations by the services Other assessments focus more on the law s implementation148 The ESA says Michael O Connell in a response to Rohlfs critique is a remarkably prescient statute that has been plagued since its adoption by ineffective implementation 149 The ESA is suf ciently clear uncomplicated and concise and its goals can be achieved with political will and adequate funding 0 The lack of the latter he says is largely the cause of the ESA s de ciencies Steven Yaffee s analysis also focuses on the highly prohibitive ESA being implemented in a nonprohibitive fashion 1 Most assessments of the ESA are subjective and situational Groups will take issue with the vagueness of the statute when they believe it is not being implemented properly In other words they want detail and speci city when they do not trust those implementing the laws they like If the agencies are trusted however such groups might see exibility rather than trouble in vagueness As will be discussed in more detail below the ESA also complicates the administrative versus legislative control debate Congress for example would not be overly burdened by saying yes or no to snowmobiles in Yellowstone or by making similar policy choices But determining when a species merits listing or delisting is an altogether different policy choice and one that is often mired in scienti c quot 39 39 and 39 152 l 147 Id at 276 148 ENDANGERED SPECIES RECOVERY FINDING THE LESSONS IMPROVING THE PROCESS Tim W Clark et al eds 1994 149 Michael O Connell Response to Six Biological Reasons Why the Endangered Species Act Doesn t WorkiAnd What to Do About It 6 CONSERVATION BIOLOGY 140 1992 150 Id at 142 151 See generally STEVEN L YAFFEE PROHIBITIVE POLICY IMPLEMENTING THE FEDERAL ENDANGERED SPECIES ACT 1982 152 See generally Holly Doremus The Purposes E 39ects and Future of the Endangered SpeciesAct s Best Available Science Mandate 34 ENVTL L 397 2004 Holly Doremus Listing Decisions Under the Endandered Species Act Why Better Science Isn tAlways Better Policy 75 WASH ULQ 1029 1997 NAT L RESEARCH COUNCIL SCIENCE AND THE ENDANGERED SPECIES ACT 1995 evaluating the ESA and related policy debates in terms of contemporary scienti c knowledge Administrative Discretion in Public Lands Governance 251 II RETHINKING STATUTORY DETAIL AND ADMINISTRATIVE DISCRETION This part reviews the political and philosophical debate over congressional delegation of authority and agency discretion as it applies to public landsbased political con ict Do agencies like the USFS and NPS have too much discretion Are they legitimate arbiters of competing claims to public lands What might happen if Congress reasserted itself and provided more prescription detail and guidance in new legislation Some of the central arguments reviewed in the case for and against administrative leadership and discretion qualify my argument for providing more statutory detail in the following section A Administrative Leadership and Discretion Article IV Section 3 of the US Constitution states The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Tenitory or other Property belonging to the United States and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States or of any particular state 153 The federal government has proprietary and sovereign powers over its property including public lands and may regulate activity on private lands that affect its public lands The Property Clause has been debated between those advocating a broad or narrow view of its powers154 But the courts have been rather consistent in their reading of its scope and importance going so far as to say that this congressional power over public lands is without limitations lss The Property Clause changes things for some critics of congressional delegation156 While it might be unconstitutional for Congress to delegate too much responsibility to a federal agency 153 US CONST art IV 3 Cl 2 154 See generally Peter A Appel The Power of Congress Without Limimtion The Property Clmrse and Federal Regukition of Private Property 86 MINN L REV 1 2001 revieng the history and potential of the Property Clause 155 United States v San Francisco 310 US 16 29 1940 See also Kleppe v New Mexico 426 US 529 53940 1976 describing Congress s broad powers under the Property Clause 156 Delegation critic David Schoenbrod makes an exception for the management of government property See David Schoenbrod The Delegation Doctrine Could the Court Give it Substance 83 MICH L REV 1223 1226 126572 1985 DAVID SCHOENBROD POWER WITHOUT RESPONSIBILITY HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 18689 1993 252 J ENVTL LAW AND LITIGATION Vol 192 2004 regulating private behavior it has much more latitude when it does so concerning its own public lands The executive acts as both proprietor and sovereign when executing delegated Property Clause powers As noted by Sandra Zellmer this means that property management is not necessarily analogous to other types of lawmaking and more leeway might be afforded executive agencies acting not only as instruments of a tripartite government but also as proprietors when public property is implicated 157 She also notes that courts have regularly cited this executive role as proprietor in ratifying sweeping exercises of power and that the broadly phrased National Forest Organic Act of 1897 was upheld by the Supreme Court against a nondelegation challenge158 It is also possible to view public administration as another democratic check and balance Administrative leaders can make sure that laws and democratic principles are adhered to especially when they are being threatened by presidential and congressional power politics159 They are not mere pawns according to this view rather they are democratic trustees empowered with the public s interest They can advance this interest by implementing laws Congress intended and if such laws are being threatened by the President or by members of Congress they have the responsibility to inform the public They will in essence say if you want us to do that you need to rst pass a law saying so Administrative leadership can take other forms as well Former Labor Secretary Robert Reich believes that higherlevel public managers ought to stimulate public debate about what they do Public deliberation can help the manager clarify ambiguous mandates More importantly it can help the public discover latent contradictions and commonalities in what it wants to achieve Thus the public manager s job is not only or simply to make policy choices and implement them It is also to participate in a system 0 157 Sandra B Zellmer The Devil the Details and the Dawn of the 21 Century Administrative Suite Beyond the New Deal 32 ARIZ ST LJ 941 1025 2000 153 Id at 102526 See United States v G39Iimaud 220 US 506 1911 159 H George Frederickson amp David K Hart The Public Service and the Patriotism of Benevolence 45 PUBLIC ADMIN REV 54753 1985 discussing the role of public administration as a check on power with an example of resistance by Danish civil servanw to Nazi leaders during WWII German occupation See also MICHAEL W SPICER THE FOUNDERS THE CONSTITUTION AND PUBLIC ADMINISTRATION A CONFLICT IN WORLDVIEWS 6970 1995 discussing visions and Worldviews of public administration from an American Constitutional perspective Administrative Discretion in Public Lands Governance 253 democratic governance in1 gghich public values are continuously reart1culated and recreated This is how Reich approaches the administrative discretion democratic values challenge public managers use this discretionary space or running room to engage the public in democratic deliberation about what it wants in a type of civic discovery 1 Administrative management especially when channeled through rulemaking processes can be more democratic and participatory than other forms of democratic decision making 2 Democracy after all is a contested concept 3 Administrative control might satisfy some conceptions of democracy and fail others but the same goes for legislative representative control164 The administrative rulemaking process as outlined in the 1946 Administrative Procedures Act165 is integral to this case It provides substantive opportunities for public participationiopportunities that are quite rare in legislative 160 Robert B Reich Policy Making in a Democracy in THE POWER OF PUBLIC IDEAS 12324 Robert B Reich ed 1988 161 Id at 14447 162 A rule according to the Adrninistmtive Procedures Act APA means the Whole or part of an agency statement of geneml or particular applicability and future effect designed to implement interpret or prescribe law or policy 5 USC 5514 2000 There are three important elements of rulemaking First information must be provided to the public in the form of a notice that is published in the Federal Register Generally the agency tells the public What it is proposing to do under What authority and statute it is acting and the time ofthe rulemaking period Once the decision has been made the agency is to also issue a general statement of the rule s basis and purpose Second the participation requirement mandates that agencies give the public an opportunity to participate in the rulemaking through submission of Written data views or argumenw with or Without opportunity for oral presentation Finally accountability is an important element of rulemaking and is most explicit in the possibility ofjudicial review The revieng court can hold unlaw il and set aside an agency action found to be arbitrary capricious and abuse of discretion or otherwise not in accordance with law For an extended analysis of rulemaking and accountability see CORNELIUS M KERWTN RULEMAKING 1994 163 ROBERT A DAHL ON DEMOCRACY 1998 exploring democracy in the ideal and in practice and the underlying conditions favoring and harming democracy 164 Dan M Kahan Democracy Schmemocracy 20 CARDOZO L REV 795 80304 1999 arguing that democmcy is an empty standard for evaluating the desirability and constitutionality of delegation Any argument that critiques delegation based on one conception of democmcy will be answerable by an argument that defends delegation based on some other conception of democmcy But see David Schoenbrod Delegation and Democracy A Reply to My Critics 20 CARDOZO L REV 731 1999 Responding to Kahan Schoenbrod notes that the effort to square delegation With democracy is pervasively futile because the drive for delegation from the beginning of the twentieth century stemmed from a desire to reduce government s accountability to ordinary Voters Id at 732 165 5 USC 551 2000 254 J ENVTL LAW AND LITIGATION Vol 192 2004 proceedings Furthermore as opposed to vague legislation the public has a chance to comment on speci cs in rulemaking so that they are much more certain of how policy may affect them Thus it is easier to formulate meaningful positions From an interest group standpoint rulemaking can also be a very effective organizing tool because rules are so speci c and thus provide a focal point of the debate The rulemaking process is also a way to limit the power and discretion of bureaucrats According to Cornelius Kerwin rules set limits on the authority of public of cials in all areas of their work identifying what they can know how they can learn it when they must act what they must do when they must do it and actions they can take against those who fail to comply 166 Thus ears of unfettered discretion in the hands of willful or ignorant bureaucrats are largely unfounded in a system in which citizens can trust that rulemaking will occur subsequent to any legislative enactment and set effective and reasonable limits on the use of otherwise discretionary power Rulemaking in short provides a way to ensure that agency actions are not arbitrary and capricious 8 Accountability is an essential part of this debate 9 but there is no agreed upon notion of what it means exactly170 According to some 166 KERWTN swra note 162 at 31 167 1d 168 See 5 USC 7062a 2000 discussing scope ofrevieW in the APA 169 See generally KERWTN supra note 162 at 215 providing a comprehensive review of executive legislative and judicial oversight of rulemaking 170 Edward P Weber The Question of Accountability in Historical Perspective From Jackson to Contemporary Grassroots Ecosystem Management 31 ADMIN amp SOC Y 53 480 1999 Applying the concept of accountability to the move toward gmssroow ecosystem managemen In the end the Whole idea of accountability is as uid and contextual as that of democrac Weber traces our changing expectations and understanding of the accountability concept What Weber nds is that each conceptualization emphasizes different institutions and locates the ultimate authority for accountability in differing combinations and types of sectors public private intermediary processes decision rules knowledge and values The eighteenth century Jacksonian model for example emphasized bottomup and massbased political parties and intermediary associations While the publicinterest egalitarian model focused more on centralized federal control and broader participation in bureaucratic decision makin The point is that accountability means different things to progressiveera New Dealers than it does to neoconservative ef ciency types While submitting that an acceptable system of democratic accountab39 ity can take a variety of forms mther than adhering to some sacrosanct overarching notion of accountability Weber also concludes that each model relies on the Constitution as the preeminent authority in policy and political disputes and that each pays homage to the electoral connection between citizens and representatives and to the corollary primacy of elected of cials over the bureaucracy as m 1d amental sources of legitimacy for American democmcy Administrative Discretion in Public Lands Governance 255 critics who think there is too much congressional delegation bureaucrats are largely unaccountable because they are not elected171 But others argue that public officials with delegated decision making powers are appointed by an elected President172 The case frequently cited here is Chevron USA Inc v Natural Resources Defense Council Inc in which the Court stated that While agencies are not directly accountable to the people the Chief Executive is and it is entirely appropriate for this political branch of the Government to make such policy choicesiresolving the competing interests which Congress itself either inadvertently did not resolve or intentionally left to be resolved by the agency charged the administration of the statute in light of everyday realities This argument is straightforward if Congress provides detail end of story But if Congress leaves legislation general and vague then it has in effect deferred to the executive branch and this branch is controlled by the President In other words delegation of power to administrators can in fact improve governmental responsiveness because Presidents are elected and heads of administrations174 In short according to this view presidential control of agency decision making provides democratic accountability through the ballot box175 Defenders of administrative control also argue that legislative oversight of agencies provides another layer of accountability This oversight happens in numerous ways176 First of course Congress could control agency action by writing more detailed legislation Second its power of the purse is another important control mechanism Congress often sends messages to agencies through the appropriations process The agencies are accountable because they are not self nancing Other methods include using deadlines for agency action hammer provisions written into statutes that will 171 See infra Part IIIB 172 See eg Jerry L Mashaw Prodelegation Why Administrators Should Make Political Decisions 1 JL ECON amp ORG 81 95 1985 173 467 US 837 86566 1984 174 Mashaw supra note 172 at 95 175 Richard J Pierce Jr Political Aeeounmbility and Delegated Power A Response to Professor Lowi 36 AM U L REV 391 40708 1987 discussing the capabilities ofthe executive branch as it applies to delegation and democratic accountabi 39ty 176 The legislative Veto struck down b the Supreme Court in Immigration and Naturalization Serv V Chadha 462 US 919 1983 provided What was perhaps the strongest type of Congressional control over agency rulemakin Veto provisions Were Written into statutes requiring agencies to submit proposed rules for congressional review and approv 256 J ENVTL LAW AND LITIGATION Vol 192 2004 take effect if an agency fails to do what Congress wants it to oversight and program reauthorization hearings staff investigations and eld studies communication with agency personnel casework review agency reports required by Congress and program evaluations done by agencies committee staff and nongovernmental personnel The problem with such oversight though is that it has led to an increasingly rigid in exible and ossi ed rulemaking process178 Instead of stepping forth and tackling the controversial policy issues of the day Congress instead tries to control the decisions public land agencies make by forcing them to go through dozens of procedural and analytical steps179 And if this fails to work it uses the appropriations process to get what it wants These procedural provisions are sometimes designed to thwart the legislative mandates agencies must implement180 And if this was not enough Congress 177 See generally JAMES R BOWERS REGULATJNG THE REGULATORS 1990 JOEL D BERBACH KEEPING A WATCHFUL EYE THE POLITICS OF CONGRESSIONAL OVERSIGHT 132 1990 Such oversight could be categorized as police patrol or ofthe re alarm variety The former is more proactive in nature While the latter is set off by a disgruntled constituent or interest group See Matthew D McCubbinS amp Thomas Schwartz Congressional Oversight Overlooked Police Patrols Versus Fire Alarms 28 AM J POL SCI 16579 1984 178 See generally Thomas O McGarity Some Thoughts on Deossi ing the RulemakingProeess 41 DUKE LJ 1385 1992 179 Congress has imposed a number of analytical requirements like having agencies go through the EIS process and prepare analyses required by the Regulatory Flexibility Act all in an effort to exercise control over agency decision making Add on top of this a number of analytical requirements imposed by the White House These are o en issued in the form of Executive Orders mandating agencies to conduct such things as regulatory impact analyses and to evaluate rules in terms of private property rights trade and federalism among other things Another layer consists of scienti c review requiremenw that agencies use to solicit ouwide expertise and to peer review scienti c and technical rules Once these analytical requirements are met they are then subject to congressional judicial and executive review President Reagan s Executive Order 12291 for example requires that agencies submit all rules to the Of ce of Management and Budget OMB for review so that the are in compliance With the Order s costbene t anal 39cal requirements Exec Order No 12291 46 Fed Reg 13193 13194 Feb 19 1981 Yet another layer of review came with President Bush s Council of Competitiveness These are two examples of how the executive competes with Congress for control over agency decision making According to McGarity S analysis ossi cation results from these requirements and reviews McGarity swra note 178 180 See GARY C BRYNER BUREAUCRATIC DISCRETION 3 1987 Bryner asserts that the broad scope of administrative power has invited political intervention in administrative proceedings and has produced an enormous superstructure of procedural mechanisms designed to create the illusion of legitimacy for administrative governmeng which fails to limit and direct administrative power and threatens the ability of agencies to accomplish their statutory mandates Administrative Discretion in Public Lands Governance 257 then often complains about the bureaucratic red tape paperwork and inef ciencies resulting from such processes181 This is not to suggest that these steps are not bene cial but that there is a more legitimate way of controlling administrative discretioniby making choices in legislation The federal judiciary provides the most obvious form of administrative oversight It makes sure that agencies behave legally and that they follow substantive and procedural rules Two questions are asked is this rule or action permissible under the agency s congressional mission mandate and authorizing legislation And did the agency follow the appropriate procedures in carrying out this rule or action The mere eXistence of the courts and the threat of litigation affects bureaucratic behavior through the law of anticipated reaction182 But when cases are brought before them courts often look to the important provisions of the APA The APA directs the reviewing court to hold unlawful and set aside agency action ndings and conclusions found to be arbitrary capricious an abuse of discretion or otherwise not in accordance with law183 andor in excess of statutory jurisdiction authority or limitations or short of statutory right 184 Predictably courts give different meaning to this language Some adopt a hard look standard in which they are quite searching skeptical vigilant and aggressive in their review of agency rulemaking185 They will scrutinize agency decisions and play a more active role in the process But the more dominant view is much less likely to intervene in agency rulemaking seeing it as judicial usurpation of agency discretionm As long as agencies stay within their statutory mandates and do not egregiously mess up procedures courts adopting this view will generally give the agency the bene t of the doubt187 Thus one view grants great latitude to the judiciary while the other to agencies 181 See generally Bosworth squra note 47 182 See generally PAUL J CULHANE PUBLIC LANDS POLITICS 1981 183 5 use 7062a 2000 184 Id 7062c 185 See eg Citizens to Preserve Overton Park Inc v Volpe 401 Us 402 1971 186 See eg Chevron v Natural Res Def Council 467 Us 837 1984 187 See Vic Sher Breaking Out of the Box T oxie Risk Government Actions and Constitutional Rights 13 J ENVTL L amp LITIG 145 1998 analyzing the limitations of litigating under the extremely deferential standard set forth in the APA 258 J ENVTL LAW AND LITIGATION Vol 192 2004 For purposes here it is enough to point out the real and potential role of the judiciary in checking the powers of administrative control But while judicial oversight is an essential feature of the checks and balances system the courtroom is not the most appropriate venue for resolving some political con icts However given the amount of administrative discretion provided to public land agencies and our hyperpluralistic and litigious political culture the courts have become dominant players in public lands governance188 In many ways the often cited iron triangle comprised of private interests agencies and congressional committees has been replaced by a judicial iron triangle because of the important role judges play in the process189 There is a dominant sequence in public lands politics 1 vague ambiguous or contradictory laws leave many central political questions unanswered 2 land management agencies try to answer these questions using the lessthanperfect administrative rulemaking process 3 they are sued 4 courts implicitly or eXplicitly answer the political questions avoided by Congress 5 depending on the court s interpretation they are either championed as guardians of democracy or vili ed as judicial activists This recurring pattern raises an important question of when judicial oversight becomes judicial control190 It is also important to consider whether or not the hypercompleX nature of social and ecological systems precludes Congress from providing any meaningful detail and speci city in legislation In other words might the complexity of environmental problems necessarily lead to Congress delegating authority to resource professionals and scienti c eXperts in federal agencies If so it would be unwise to provide too much detail and prescription in such a compleX and rapidly changing environment This argument is well worn and found its most forceful articulation in the Progressive Era 188 See generally GEORGE CAMERON COGGINS ET AL FEDERAL PUBLIC LAND AND RESOURCES LAw 5th ed 2002 189 Jeanne Nienaber Clarke amp Kurt Angersbach The Federal Four Change and Contimity in the Bureau of Land llIanagement F irh and Wildlife Service Forest Service and National Park Service 19702000 in WESTERN PUBLIC LANDS AND ENVIRONMENTAL POLITICS 35 Charles Davis ed 2001 190 See generally ROSS SANDLER amp DAVID SCHOENEROD DEMOCRACY BY DECREE WHAT HAPPENS WHEN COURTS RUN GOVERNMENT 2003 analyzing how courts came to govern Various policy areas and the growth of institutional reform litigation Administrative Discretion in Public Lands Governance 259 that the science of conservation must be left to the professionally trained and apolitical experts in federal agencies191 It is worth asking however if many of our controversial resource decisions are all that technical and complex Should snowmobiles be allowed in Yellowstone Should we ban road construction with permissible exemptions and mitigations in inventoried roadless areas Should we allow drilling along Montana s controversial Rocky Mountain Front These are value and interestbased political questions not technical ones Surely there is a level of complexity involved but the core questions are hardly beyond the grasp of our elected representatives Nonetheless there are questions and issues that would challenge any national representative body such as the scienti c complexities surrounding the ESA illustrate192 A case can also be madeiat lease in theoryithat increased administrative control is more conducive to adaptation and exibility Rulemaking process and litigation notwithstanding agencies might be better positioned than Congress to adapt to the changing and site speci c contexts problems and goals of public lands management Though preached more than practiced the science of adaptive management necessitates agency exibility This means that policies and management decisions are experiments that we learn from Practitioners are explicit in what they expect information is collected and analyzed so that expectations can be compared to the actuality then nally they correct errors learn and change actions and plans193 Might the principles of adaptive management be inimical to the tedious and uncertain nature of congressional policymaking It would be unrealistic to expect Congress to provide this sort of micromanagement or to have it vote various management decisions up or down along the way On the other hand it is also necessary to ask if the theory of adaptive management is even possible in the modern administrative state 191 See generally SAMUEL P HAYS CONSERVATION AND THE GOSPEL OF EFFICIENCY THE PROGRESSIVE CONSERVATION MOVEMENT 18901920 1959 192 See supra Part II 193 See KAI N LEE COMPASS AND GYROSCOPE INTEGRATING SCIENCE AND POLITICS FOR THE ENVIRONMENT 9 1993 Lee comments I have come to think of science and democracy as compass and gyroscope navigational aids in the quest for sustainability Science linked to human purpose is a compass a Way to gauge directions when sailing beyond the maps Democracy with its contentious stability is a gyroscope a Way to maintain our bearing through turbulent seas Id at 56 260 J ENVTL LAW AND LITIGATION Vol 192 2004 Differences between theory and practice are also important when thinking about alternatives to administrative control The demands on Congress often exceed its institutional capacity and nding agreement even a slim majority in this body is usually difficult Given this reality one possibility is that if Congress could not delegate authority to agencies in providing detail and speci city it would 39 39 39 this 1 quot quot39 to 39 39 39 or subcommittees For Richard Stewart such subdelegation to subcommittees raises accountability concerns because it shifts power to senior committee chairs and staff and their interest group allies Policy is made through a submerged micropolitical process without open and regular procedures 194 Congress might also provide this necessary statutory detail by tacking substantive policy riders onto appropriations bills Instead of building a majority to support their policy goals rider provisions allow representatives to bury the detail in other voluminous often omnibus bills195 Since such appropriations bills have to pass each year to keep the government working they provide an opportune vehicle for representatives who are unwilling or unable to forward policy through more traditional processes This illustrates why it is so important to contrast the agency rulemaking process to the real way policy is often made in Congress The procedural and participatory requirements of federal rulemaking can be more regular 1 quot 39 39 open r 39 l and democratic than some questionable legislative practices As Stewart notes unlike rulemaking subdelegated congressional decision making is often not subject to public input through regularly established procedures not required to be based on a public record and not subject to hard look judicial review196 In sum if we are going to debate the case for and against statutory detail and 194 Richard B Stewart Beyond Delegation Doctrine 36 AM UL REV 323 332 1987 195 The use of appropriations riders in natural resource policy is alarmin See generally Sandra Beth Zellmer Sacri cing Legiskitive Integrity at the Altar of Appropriations Riders A Constitutional Crisis 21 HARv ENVTL L REV 457 1997 arguing that the appropriations process is not a suitable Way to formulate major changes in policy and for establishing national priorities Linda M Bolduan The Hay39ield Riders Eliminating the Role of the Cmrts in Environmental Decision Making 20 ENVTL L 329 1990 examining the use of riders to exempt various forest management actions from judicial review 196 Stewart supra note 194 at 333 Administrative Discretion in Public Lands Governance 261 administrative discretion let us compare these venues in theory and practice B The CoseforAdditionol Statutory Detail Many of the above arguments should give us pause before demanding a more active role for Congress in public lands management There are serious limits on what Congress can do in this area and a legislative x might make things worse But the following discussion also shows the limits of administrative leadership and discretion when it comes to public lands con ict resolution Good law after all is essential for a representative democracy As noted by Theodore Lowi a persistent and often cited critic of administrative control and its constitutional derangements Policy without law is what a broad delegation of power is 197 h rise of administrative law and the decline of good statutory law is the most troublesome development for Lowi who sees the move from concreteness to abstractness in the de nition of public policy as probably the most important single change in the entire history of public control in the United States 198 Laws change the rules of the game says Lowi A good clear statute puts the government on one side as Opposed to other sides it redistributes advantages and disadvantages it slants and redefines the terms of bargaining 39 39 bargaining as this term is currently defined Laws set 1pgiorities Laws delrberately set some goals and values above Others The broad delegation of power runs contrary to this rule of law and has wrapped public policies in shrouds of illegitimacy and ineffectiveness 200 A good clear law will eliminate politics at certain points Vague meaningless law in contrast politicizes the entire policymaking process from Congress to the lowlevel agency representatives who endlessly negotiate with agency clients The problem is clear according to Lowi modern law has become a series of instructions to administrators rather than a series of commands to 197 THEODORE J LOWI THE END OF LIBERALISM THE SECOND REPUBLIC OF THE UNITED STATES 93 2d ed 1979 For the im ortance of Lowi s Work and the impression it made see Theodore J Lowi and rridieal Democracy 23 PS POL SCI amp POL 563 1990 198 LOWI supra note 197 at 100 199 Id at 92 200 Id at 93 262 J ENVTL LAW AND LITIGATION Vol 192 2004 citizens 201 Juridical democracyithe rule of law operating in institutionsiis put forth by Lowi as the x to this problem202 The principle on which it stands is quite clear the institutions of government ought to say what they are going to do to us before they do it and if they cannot say they cannot act 2 Process and public participation is also not a substitute for good law Calling for more process and interest representation is an easy out for political representatives who are responsible for making tough choices For Lowi the representation focusiincluding the new halo words of cooperation partnership local option creative federalism community action and participatory democracyiis a pathological adjustment to the problem and converts government from a moralistic to a mechanistic institution204 The use of public participation in the rulemaking process is also a rather weak proxy for authentic democratic decision making That argument is very relevant to the collaborative conservation movement and the increasing use of public participation in agency decision making205 Instead of our political representatives taking responsibility for the tough choices that must be made they can pass them along to agencies who in turn pass them along to their clients or other self selected stakeholders who are only accountable to the special interests they represent For critics this is yet another pathology of interest group liberalism that does not meet the public interest Law Professor George Coggins for example is emphatic that the devolution and collaborative movement is an abdication of congressional judicial and executive responsibilities First he notes that Congress routinely ducks the hard allocation questions by delegating nearly standardless management powers to the USFS and BLM207 The judges abdicate their judicial function by defening to an agency s choices and interpretations And now bureaucrats are passing the 201 Id at 106 202 Id at 298 203 1d at 299 204 Id at 62 205 See generally THOMAS C BEIERLE amp JERRY CAYEORD DEMOCRACY IN PRACTICE PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONS 2002 206 George Cameron Coggins Regulating Federal Natural Resources A Summary Case Against Devolved Collaboration 25 ECOLOGY L Q 602 1999 207 See George Cameron Coggins Of Sueeotash Syndromes and Vacums Platiludes The Meaning of Multiple Use Sustained Yield for Public Land Management 53 UCOLO L REV 229 230 1981 Administrative Discretion in Public Lands Governance 263 buck on controversial issues to devolved collaborative groups So what should happen according to Coggins All interests will be better off if Congress actually decides the political resource allocation questions the executive carries out the letter and spirit of the law and the courts make sure the executive does just that 208 We must also not be fooled by lengthy laws which simply delegate in great detail while failing to address central policy choices David Schoenbrod another prominent critic of too much congressional delegation argues that most delegating statutes do not simply pass the buck but rather passes it along with complicated instructions 209 He makes a distinction between broad and narrow delegation and uses the Clean Air Act of 1970 as an example of the latter This law says Schoenbrod simply delegates in a new way by giving the Environmental Protection Agency EPA elaborate instructions about the goals that it should achieve and the procedures for promulgating them 210 Narrow delegation is also evident in public lands law FLPMA for example articulates general principles of multiple use management while providing very speci c instructions in how the Interior Secretary and BLM should go about making decisions211 Narrow delegation can often be identi ed by its goal and instructionoriented design This allows political representatives to stand behind the principle of clean air for instance then go a step further by agreeing to an emissions reduction target and then specifying what steps and procedures the EPA must use to achieve this goal But the hard choices of how to achieve those emissions reductions and regulate various sources of pollution were delegated to the EPA and left to the states Schoenbrod also argues that narrow delegation has the perverse sideeffect of delaying complicating and rigidifying the process of making environmental laws 212 But why make agencies jump through so many hoops in meeting these goals Complicated instructions often serve to camou age the buck passing because legislators can hardly claim credit for solving a problem when the statute hands the problem to an agency without 208 Coggins supra note 206 at 610 209 David Schoenbrod Separation of Powers and the Powers That Be The Constitutional Purposes of the Delegation Doctrine 36 AM UL REV 355 367 1987 210 SCHOENBROD supra note 156 at 58 211 See 43 use 1701 2000 212 SCHOENBROD supra note 156 at 59 264 J ENVTL LAW AND LITIGATION Vol 192 2004 saying more and it obscures the legislative mandate requiring agencies to reconcile irreconcilable goals 213 The goalbased statutes governing the USFS are particularly relevant to this case Those laws generally state goals which often con ict and then delegate the job of reconciling those con icts to agencies214 In MUSYA and NFMA for example Congress can stand behind the vague goal of multiple use without having to decide how to balance outdoor recreation range timber watershed and sh and wildlife values The tough and politically risky decisions are again left to the agency In the case for more statutory detail it is made eXplicit that Congress is currently abdicating its responsibilities to make the tough choices and necessary tradeoffs required of it Congress is compromising through statutory vagueness Congress leaves laws vague to please interested parties or leads those parties to believe that they can get what they want by following the applicable process In sum delegation gets politicians off the hookithey can promise everything to everyone and when promises go unful lled they have a convenient bureaucratic scapegoat Selfinterested political representatives have learned that taking sides on policy issues creates political opposition and entails real costs and risks Delegation thus encourages Congress to enact unnecessarily ambiguous or contradictory laws It encourages bad laws says Schoenbrod because members of Congress do not have to take responsibility for the rules of conduct that eventually emerge from the delegation process So long as delegation allows politicians to enact laws that promise all things to all people eXhorting them to delegate in a different way is spitting into the wind 215 Daniel Rohlf makes that argument in his critique of the ESA He sees strengthening this statute as an uphill battle given what the current teXt now gives lawmakers He says as is comm on in other contexts Congress has said one thing about species protection yet actually done another The Act makes genera commitments to preserve biodiversity but transfers important policy decisions to those not directly accountable to the electorate This permits politicians to point to their solid environmental voting record while at the same time pressuring administrative agencies responsible for implementing the Act not to 213 Schoenbrod Wm note 209 at 368 214 See generally David Schoenbrod The Delegation Doctrine Could the Cmrt Give It Substance 83 MICH L REV 1223 1224 1985 215 Schoenbrod Wm note 209 at 370 Administrative Discretion in Public Lands Governance 265 make decisions that significantly curtail economic activities particularly in their districts Reduced protections for biodiversity are then passe o f as science rather t an conscious politically driven policy choices Conservation biologists and others need to redouble their efforts to impress upon elected officials and the public the worth of saving imperiled species However until policy decisionsithe degree of security to give listed species for exampleiare taken away from administrative agencies and given to politically accountable decisionmakers such efforts will have limited in uence 6 A similar logic can be applied to the case of multiple use Here we have a situation in which congressional members lend rhetorical support for this broad mandate while historically acting on behalf of organized special interests217 These critiques rely heavily upon the notion of Congressional credit claiming As singleminded seekers of reelection Congress members engage in certain types of behavior that will help them achieve that goal218 This includes advertising a favorable image to constituents one often devoid of content partaking in constituent casework with favors being returned taking strategic positions on issues and then claiming credit for various political accomplishments The latter is often done by particularizing bene ts or the practice of concentrating rewards and dispersing costs For those subscribing to this View delegation provides the perfect vehicle for selfinterested congressional members They can vote on some vague law claim credit for doing something and then follow it with a targeted advertising campaign Of course the law will be vague enough that bureaucrats will have to answer the toughest questions and make the hardest choices Because of this members can work quietly behind the scenes in uencing agency behavior and doing more casework In sum it gives politicians a way to dodge the tradeoffs and instead talk about fuzzy ideological abstractions 216 Rohlf supra note 146 at 280 217 See Blumm supra note 11 Blumm argues that public choice theory supports the proposition that multiple use cannot ful ll is promise because it is inherently biased toward commodity users and that Since multiple use is founded upon a standardleSS delegation of authority to managers of public lands and Waters congressional endorsement of multiple use has created the archetypal Special interest legislation 1d at 405 407 218 See DAVID R MAYHEW CONGRESS THE ELECTORAL CONNECTION Ch 1 1974 But see Steven Kelman Why Public Idea AIatter in THE POWER OF PUBLIC IDEAS 31 Robert B Reich ed 1988 Taking issue with the public choice explanation of all congressional behavior and arguing that as a general rule selfinterest becomes a leSS power rl in uence as the importance of a policy choice increases Id at 39 266 J ENVTL LAW AND LITIGATION Vol 192 2004 values and goals that are broad enough to catch favorable political winds Relatively clear understandable and unambiguous law is also an important factor necessary for effective policy implementation along with budgets political support etc Much of the scholarly literature focusing on implementation emphasizes the importance of precision clear policy goals and the ranking of statutory objectives219 Of course without such goals and objectives in place it is impossible to judge whether or not the agency in question is achieving them And without some type of prioritizing of objectives including an indication of how statutes are supposed to work together new directives may be given low priority or become lost in the shuf e220 This certainly makes intuitive sense and takes some heat off of our public land agencies The remedy here is also simple write clearer statutes and eXpect relatively better implementation Excessive administrative control using byzantine rulemaking and planning processes might also lead to increased political alienation among citizens Schoenbrod believes that delegation is partially responsible for voter apathy alienation and the sense held among many people that our political system is often impervious to public direction With delegation he says lawmaking even on the most controversial subjects becomes for most of us an incomprehensible bore 221 Why should voters invest the time and energy to become knowledgeable about the policy positions of candidates if the most important decisions are not made legislatively but rather through some labyrinthine rulemaking process Furthermore why participate in a timeintensive process when public comment may not matter all that much anyway 219 See generally Donald S Van Meter amp Carl E Van Horn T he Policy Implementation Process A Conceptual Framework 6 ADMIN amp SOCIETY 445 1975 discussing the importance of policy objectives and standards ROBERT T NAKAMURA amp FRANK SMALLWOOD THE POLITICS OF POLICY IMPLEMENTATION 33 1980 discussing the importance of clarity in policy instructions and directives meaning being speci c about what is to be achieved and how GEORGE C EDWARDS IMPLEMENTING PUBLIC POLICY 10 1980 stating that or implementation to be effective those Whose responsibility it is to implement a decision must know What they are supposed to do 220 See Paul Sabatier amp Daniel Mazmanian The Implemenmtion of Public Policy A Framework ofAnalyrir 8 POL Y STUD J 538 545 1980 In short to the extent that a statute provides precise and clearly ranked instructions to implementing of cials and other actor more likely that the policy outputs of the implementing agencies and ultimately the behavior of target groups will be consistent with those directives 221 SCHOENBROD mpra note 156 at 20 Administrative Discretion in Public Lands Governance 267 Communities and industries that are particularly dependent on public lands might also nd a degree of predictability in increased statutory detail One of the most enduring questions in public lands con ict is what obligation our land agencies have in providing community stability and economic development Should our national forests for example be managed in a way to bene t local timber industries and communities And should our national parks be managed for the gateway communities that become economically dependent upon them If so where have those decisions been made and have they been codi ed by Congress The volatility surrounding public lands politics is at least one disincentive for industries and communities to rely too heavily on the public domain In forest policy for example uncertainty resulting from litigation administrative appeals and changing administrative prioritiesiall partially stemming from legislative language issuesi leaves some interests unwilling to make serious investments and long terrn plans Why for instance invest in new technology capable of handling small diameter trees if the next administration changes course and gives different meaning to multiple use and forest health Providing a new level of statutory detail might help things then partly because it is so much harder for Congress to reassemble majorities and rewrite laws than it is for an agency to promulgate new rules This argument can also be taken too far however With national forests for instance securing community stability and predictability might be but a pipedream There are simply too many factors complicating these goals including the unpredictable nature of re insect outbreaks and disease new scienti c knowledge swings in public opinion drought climate change agency budgets and congressional appropriations market demand housing starts and globalized timber markets to name a few For former USFS Chief Jack Ward Thomas given the myriad of interacting variables it is time for concerned citizens and leaders to accept the reality that the dream of a stable timber supply from public lands is an illusion 222 But predictability could be increased he says in part by Congress dealing squarely with the issue of biodiversity protection which he believes has become the overriding de facto policy of federal lands management223 If that is our policy he says it should be clearly 222 Jack Ward Thomas Smbility and Predictability in Federal Forest Management Some Thouth from the Chief 17 PUB LAND amp RESOURCES L REV 9 14 1996 223 1d at 15 268 J ENVTL LAW AND LITIGATION Vol 192 2004 stated recognized openly and the consequences accepted If biodiversity protection is not a desired national policy that should also be stated A clear declaration of policy regarding biodiversity is one key to the stability debate 224 There is a widespread assumption that national forest management ought to promote community stability and economic development This belief has in uenced USFS policies and has certainly been a common theme in con icts over owls old growth forests and other issues But there eXists little eXplicit statutory guidance on how large a role it should play in USFS decision makingm NFMA provides some direction here227 but much of this emphasis on community stability stemmed from USFS planning regulations like the one calling for the maximization of net public bene ts228 and the consideration of public comment much of it coming from these communities But While planning regulations call for its consideration there is very limited eXplicit statutory authority to do so Of course Congress has said a number of things about this matter over the years in the Congressional Record during oor debate and in other places but it has not been eXplicit where this goal ranks in 224 1d 225 See generally Hearing on Impact of Federal Land Use Policies on Rural Communities Hearing Before the House Committee on Resources 1053911 Cong 2d sess 998 226 See Con H Schallau amp Richard M Alston The Commitment to Community Stability A Policy or Shibboleth 17 ENVTL L 429 1987 Noting that public land legislation contains a general theme of concern for the economic stability of communities oWever there is little explicit statutory direction on hoW large a role community stability concerns should play in Forest Service decisions Id at 460 They go on to say that con 1sion about community stability stems from the fact that although Congress frequently reaf rms is desire to achieve community stability it has not provided any operational guidelines for doing so Id at 479 See also Report of the Society of American Foresters National Task Force on Community Stability 13 1989 on le With author noting that the agency s community stability policy is permissive rather than prescriptive James P Perry Community Smbility Is There a Statutory Solution in UNITY STABILITY IN FORESTBASED ECONOMICS Dennis C Le Master amp John H Beuter eds 1989 Perry notes that Congress has not in any legislation Which applies generally to all National Forest System lands provided any direction that requires the agencies to meet a community stability requirement Id at 32 227 In conducting timber sales the NFMA directs the Secretary of Agriculture to select bidding methods that among other thi s consider the economic stability of communities Whose economies are dependent on such national forest materials or achieve ch other objectives as the Secre deems necess 39 and are consrstent With objectives ofthis Act and other Federal statutes 16 USC 472ae1C D 2000 223 See 36 CFR 2191 Administrative Discretion in Public Lands Governance 269 multiple use nor has it provided any operational guidelines for how it is to be achieved or reconciled with other goals Another questionable assumption in public lands governance perhaps even an oxymoron is that of scienti c management The historic rationale for administrative control was provided by progressiveera thinkers advocating managerial ef ciency and a science of administration Their politicsadministration dichotomy clearly separated the political responsibilities of elected representatives from the science of administration practiced by public administrators229 Scienti c management thus became the secular religion of many resource and other agencies shaped by this political philosophy230 The USFS provides an example says USFS critic Robert Nelson It was to be an organization run by professionals kept well separated from politics This separation would allow foresters to put science to use in the national forests in the service of the public interest 231 In other words broad goals might be charted by Congress but politics ought never in uence the science and ef ciency of forest management The fatal aw in such thinking is that broad discretion makes a politician out of a bureaucrat 232 For Lowi every delegation of discretion away from electorally responsible levels of government to professional career administrative agencies is a calculated risk because politics will always ow to the point of discretion 233 Thus broad delegation of power to agencies contradicts the core arguments of political neutrality and expertise made by those advocating more administrative control Lowi also notes the paradox of this scienti c management defense for whatever substantive specialization and professional judgment agencies might have they are often displaced by formula decision making formalistic analysis systems language 229 See Frank J Goodnow Politics and Administration in CLASSICS OF PUBLIC ADMINISTRATION 25 Jay M Sha itz and Albert C Hyde eds 3d ed 1992 contending that politicS haS to do with policies or expressions of the state will Administration has to do with the execution of these policies 230 Robert H Nelson The Religion of Forestry Scienti c Management 9711 J FORESTRY 48 Nov 1999 discussing Why the paradigm no longer Works for the USFS See generally HAYS supra note 19139 ROBERT H NELSON PUBLIC LANDS AND PRIVATE RIGHTS 1995 231 Nelson T he Religion of F orestry supra note 230 at 5 232 LOWI supra note 197 at 304 233 Theodore J Lowi Two Roads to Serfdom Liberalism Conservatism and Administrative Power 36 AM UL REV 295 297 1987 270 J ENVTL LAW AND LITIGATION Vol 192 2004 and economic reductionism234 These methodologies and cookbook decision making formulas are thus replacing the very professional judgments for which Congress claims to be so respectful when it leaves its statutes so inadequately constructed 235 These politicized bureaucrats also nd themselves in a particular organizational culture with its own values worldview and priorities This culture is shaped by the political and historic conteXt in which it was born its statutory mission and mandate and the type of professionals and personnel within it These values matter a great deal especially when an agency is given a broad and ambiguous mission and is subject to capture by the interest it is supposed to be regulating The organizational cultures of our public land agencies requires little reiteration236 but a few examples are in order Wildlife management was long dominated by the agricultural paradigm in which game species were cultivated as a renewable crop to be harvested by the agency s most politically and nancially important clientsihunters shers and trappers237 The Corps of Engineers motto is essayons French for let us try It is unsurprising then that the Corps conception of progress is progrowth and construction and the control of nature through engineering238 The USFS provides what is perhaps the most studied example USFS historian David Clary asserts that the Agency s culture is more like a religion its sacred mission was to provide wood to the world and avert a timber famine 239 This religious conviction says Clary eXplains much of the controversy surrounding national forest management in that the servant USFS believed rmly that it knew better than the public what the public really wanted 240 It thus found itself preaching the science and efficiency of forestry when the public demanded values other than timber The bottom line is that value free implementation is often a sham and that unelected bureaucrats 234 Id at 305 235 1d 236 See generally JEANNE NIENABER CLARKE amp DANIEL MCCOOL STAKTNG OUT THE TERRATN 1985 analyzing seven natural resource agencies from an organizational culture and political power perspective 237 Martin Nie State Wikilife Policy andllIanagement T he Scope and Bias of Political Con ict 64 PUB ADMIN REV 221 223 2004 238 Michael Grunwald Engineers of Power An Agency of Unchecked Clmt WASHINGTON POST Sept 10 2000 at A1 investigating the power and politics smrounding the Corps 239 CLARY mum note 15 at xi 240 Id at xii Administrative Discretion in Public Lands Governance 271 with personal values and a worldview that may be contrary to the public s should not be delegated too much discretionary power To nish our review a few additional words must be said about accountability and administrative discretion As mentioned earlier the issue is not as tidy as many people make it out to be there are multiple conceptions of accountability and our textbook understanding of it rarely happens in practice241 Nevertheless too much congressional delegation to agencies poses a real threat to basic democratic principles This is a multipart challenge First there is the myth of executivebased accountability Accountability is not guaranteed just because a President appoints senior level administrators There is also the myth of the presidential mandate Presidents may claim that their supposed mandate from the people gives them the legitimacy and public support needed to forward various policies But this is silly Presidents are elected for numerous reasons and policy positions that come bundled with others Furthermore when we look at the big electoral picture including half of the American public who usually fail to vote those voting against the winner and the strange calculus of the electoral college this supposed mandate is as hollow as it looks We might also want to contrast presidential campaign rhetoric to the policy changes actually advanced in of ce And nally it is worth asking whether the executivebased accountability approach could lead to a type of imperial Presidency that so scared the founders of the Republic242 Second is the problem of effective legislative oversight Lowi believes that either it has a marginal in uence on substantial problems or a signi cant in uence on marginal problems 243 Rarely is a substantive review of an agency or program done and rarely do the tough questions get asked What about control through the appropriations process This certainly happens but it is more an example of what is wrong with modern policymaking than one of effective democratic control It is not usually a case of Congress exerting its collective will and power of the purse but rather a case of a few powerful members of Congress sitting on key appropriations committees exerting brute political power for minority special interests 241 See WEBER infra note 276 242 See generally JAMES MADISON ET AL THE FEDERALIST PAPERS Clinton Rossiter ed 1961 243 LOWI supra note 197 at 308 272 J ENVTL LAW AND LITIGATION Vol 192 2004 What about the Congressional Review Act CRA244 In theory it is a useful new tool that Congress can use to review and possibly disapprove of federal agency rules In practice however it is rarely used due to a number of impediments There is also the suggestion that confused administrators can go back and reconstruct the original intent of Congress in passing the vague andor contradictory law But as our review of the ESA illustrates this is problematic in numerous ways First there is no one intent to do anything in this body Multiple reasons for passing a law will be stated during the debate if there is one And the game often played is to leave laws vague then insert intent into the mostly phony Congressional Recordiintent that was never eXpressed on the House or Senate oor during debate246 III OPTIONS AND ALTERNATIVES There are various options and alternatives to administrative rulemaking and resource planning as a dominant approach to public lands con ict resolution The preferred alternative will depend on how compelling one nds the above arguments Five broad alternatives are sketched here prescriptive law with choicebased goal and standardbased systemic and unitlevel options administrative leadership and discretion decentralization comprehensive public lands law review and policy eXperimentation This organization is for conceptual purposes only Many of these alternatives and options are crosscutting and many principles and ideas found within them could be integrated into another coherent package But what is clear from my standpoint is the centrality of the statutory detailadministrative discretion issue in the future of environmental con ict and public lands governance 244 The CRA was included as part of the Small Business Regulatory Enforcement Fairness Act of 1996 Pub L No 104121 110 Stat 85774 codi ed at 5 USC 801 808 Supp 111 1997 The CRA provides Congress with a certain amount of time to review and possibly disapprove a rule that is de ned as major Id 801a3 Under this Acg a major rule cannot become effective for at least 60 days a er its publication so that Congress can consider the rule and possibly deal With it legislatively 1d 245 Morton Rosenberg Whatever Happened to Congressional Review of Agency Rulemaking A Brief Overview Assessment and Proposal ir Re nm 51 ADMIN L REV 1051 1058 1999 revieng the major structural impediments to the effective use of the CRA He found in his 1999 analysis that out of 222 major rules and 15199 non 39or rules as de ned in the CRA only eight joint resolutions of disapproval had been introduced related to six rules and that none had been passed by either house 246 LOWI supra note 197 at 308 Administrative Discretion in Public Lands Governance 273 Of course the question of whether Congress should provide more statutory detail is much different than to question whether it is able to do so These days it seems as though Congress disagrees on the day of the week To be useful then we must go beyond providing unrealistic scholarly admonitions So instead the following discussion describes a broader menu of choices ranging in possible effectiveness and political feasibility A Prescriptive Law Alternatives I The C 39 La d1quot Law 1L The prescriptive law alternative calls for Congress to write more detailed and speci c public land laws It would speak clearly and forcefully about the purpose and goals of our public lands and natural resources in the TwentyFirst Century Choices would be made and tradeoffs accepted Some might claim that Congress is incapable of drafting such language because of the ecological and social diversity of the publiclands system For example no onesize tsall prescriptive law can resolve the sitespeci c forest management con icts found in 155 national forests Well enough But how difficult would it be for Congress to take the lead and say yes or no to roadless area protection or yes or no to snowmobiles in Yellowstone These are not hypertechnical questions that will challenge a busy Congress but rather value and interestbased political questions that are most appropriate for legislative debate and resolution Moreover what some might criticize as onesize tsall prescription others might see as providing consistency This alternative follows the logic of Professor Lowi s call for juridical democracy and democratic formalism 247 That is Congress has the responsibility of making these hard decisions and it is very capable of doing so The problem with the neat prescriptive law alternative is that many public land issues are messy scienti cally compleX and sitespeci c Controversy surrounding ESA listing and delisting questions fall into this category The prescriptive law alternative will also prove a challenge if Congress again mandates multiple use without prioritizing since nding the right balance of uses in our diverse national forests and rangelands cannot be done with a uniform legislative package Thus the challenge with this alternative would 247 LOWI supra note 197 at 298313 274 J ENVTL LAW AND LITIGATION Vol 192 2004 be to tease out the major policy choices for congressional resolution while leaving other issues to alternative decision making venues perhaps through more decentralized collaborativebased approaches Note that such choices can and have been isolated by Congress in the past For instance the practice of clearcutting was central to NFMA s formulation and debate248 Alaska s Arctic National Wildlife Refuge ANWR provides another example Section 1003 of the Alaska National Interest Lands Conservation Act ANILCA of 1980 prohibits oil and gas development in the ANWR unless authorized by Congress249 Congress not the USFWS has taken responsibility for the future of ANWR and can either designate the area as wilderness permit oil and gas leasing or simply take no action leaving it in protected albeit vulnerable status The point is that Congress has de ned the issue as a legislative one and has not placed the USFWS in the line of re 0 2 The Goal and Standard based Prescripiive Law Alternative There is also a weaker but more eXible version of the prescriptive law alternative Following the logic of environmental laws like the Clean Air Act251 it would be possible for Congress to pass laws mandating strict ends while leaving the means to achieve them as open and eXible as possible For example look at motorized recreation which is proving to be one of the biggest controversies on public lands today 2 Congress could nd and declare that motorized recreation is deteriorating the integrity of the national forest system and thus place further restrictions on its use It could do this by clearly stating acceptable use levels or by mandating that these vehicles be allowed on major forest roads only Then it would be up to the service forest planners and perhaps some type of collaborative 248 See generally Wilkinson amp Anderson SW11 note 22 Congress had the option of choosing a more prescriptive or planningbased statute and chose the latter See mpra Part ILA 249 Alaska National Interest Lands Conservation Act Pub L No 96487 94 Stat 2371 1980 codi ed at 16 USC 31013233 2000 250 Note however how Congress has dealt with such an enormous responsibility Questionable legislative tactics like rider provisions have become the norm because a Superrnajority vote to open the refuge for oil and gas exploration has been dif cult to chieve 251 Current version found at 42 USC 7401 2000 252 See generally Jan G Laitos amp Thomas A Carr The Transformation on Public Landr 26 ECOLOGY L Q 140 1999 Administrative Discretion in Public Lands Governance 275 arrangement to gure out a way to meet these use levels or decide what roads to open and close The point is that Congress would articulate its values and goals while also recognizing the need for exibility in implementation On the other hand critics might argue that such a goalbased approach results in Congress once again dodging the really tough choices Mandating use limits they would argue is much different than deciding that a particular road in a particular Congressional district will close Writing more intelligible and enforceable standards into public lands law is another possibility This could be done in a number of ways One option is to emulate the approach taken by Congress in passing the 1997 National Wildlife Refuge System Improvement ct25 As discussed above relatively speci c management criteria were provided in this organic act such as the mandate to maintain biological integrity diversity and environmental health Of course for this option to work such standards would have to be more meaningful than the ones already provided in law such as the unnecessary and undue degradation standard provided in LPMA Another option is to pass a standardsbased organic act serving as an umbrella for all publicland agencies Such a law would supplement rather than displace eXisting publicland laws Robert Keiter has advanced such an approach for some time 5 He sees this option perhaps in the form of a National Ecosystem Management and Restoration Act as a way to provide agencies with new authority and responsibility for ecosystem management Such a law among other things would establish clear priorities among multiple uses acknowledge the need for coordinated landscapelevel planning and include at least two statutory standards a nonimpairment standard establishing a threshold basis for evaluating management proposals and a biodiversity conservation standard imposing an af rmative obligation on the agencies to protect and restore species diversity 7 Framed as management standards rather than hardandfast rules says Keiter the proposal seeks to protect ecological components and 253 See FISCHMAN supra note 105 at 79 254 43 use 1732b 2000 255 See Robert B Keiter Beyond the Btnmdary Line Constructing a Law of Ecosystem Management 65 U COLO L REV 293 1994 256 ROBERT B KEITER KEEPING FAITH WITH NATURE 308 2003 257 Id at 309 276 J ENVTL LAW AND LITIGATION Vol 192 2004 processes without placing land managers in a straitjacket rendering them unable to respond to unique local conditions or exceptional circumstances 258 3 Systemic or Unit level Prescriptive Law The issue of scale is also important to this alternative Should Congress focus on making choices and setting goals at the public lands system level or at lower levels of governance and administration As discussed in Part II we can glean quite a few lessons from the national park and national wildlife refuge experiences Within those systems there is a tension between the unifying philosophies in their organic charters and the piecemeal establishment legislation that creates individual parks and refuges There is certainly something to be gained by an agency and system having a recognizable and consistent mission integrating far ung units Without one there is a risk of disintegration because no cohesive philosophy holds the parts together This would lead to recommending that Congress make choices or set goals at the system wide level But as discussed earlier rewriting an agency s organic act may not be enough because of other priorities set in establishment legislation If Congress went down this road it would have to provide language in a new organic charter that would trump incompatible uses and goals eXpressed in establishment legislation The other option is for Congress to make choices or set goals at lower levels through continued use of establishment legislation and similar approaches This could be done by disaggregating a public lands system into its component parts and making choices on an individualized level Instead of making one systemic decision Congress would be making dozens of piecemeal decisions Prescription would still be provided but it would be more tailored and sitespeci c than if done across the board at the system level 258 1d Keiter continues The statutory proposal does not envision a radical restructuring of agencies or boundaries the proposed legal standards are not new nor do the procedural or enforcement mechanisms depart from existing law By linking the nonirnpairment standard with an ecosystem restoration obligation the proposal should help promote truly sustainable resource management policies thus enhancing community stability and perhaps restoring some peace on the public domain Id at 310 Administrative Discretion in Public Lands Governance 277 B The Administrative Discretion Alternative At the opposite end of the continuum is the administrative discretion alternative This is rather straightforward and might be seen as the equivalent of the no change alternative or changes could be made giving agencies even greater levels of discretionary freedom Taken further this alternative suggests that we be more explicit and some might say more honest about the role of politics in agency rulemaking That is to say we should recognize that professional expertise and public opinion takes a back seat to the politics and ideology of the party in power We should simply acknowledge that the synoptic decision making ideal found in NEPA and rulemaking is for the most part an impossibility This is the ideal model in which a decision maker collects all relevant facts considers all alternative policies and possible consequences of each and then chooses the policy with the highest probability of achieving the agreed goal in the most efficient way 9 t is an ideal deeply entrenched in environmental impact statements and statutes specifying that agencies make rules on the basis of the best available evidence or substantial evidence on the rulemaking record as a whole 0 Instead of asking the impossible the public would come to eXpect that our public land agencies staying within the broad contours of the law will be pulled this way and that depending on party politics They will be conservationoriented in some terms less so in others This alternative in short will view rulemaking as it really is delegated legislation and agencies for what they really are subordinate legislatures Such an acknowledgement would certainly change the way agencies do business No longer would they have to make value and interestbased political choices and then hide them in mountains of scienti c and technical information in an effort to get by the courts that demand synoptic decision making Instead agencies will come clean and make choices that might not be rational in the synoptic sense but reasonable and well within the broad guidelines of the law Martin Shapiro eXplains what an agency could do with such an alternative 259 MARTJN SHAPIRO WHO GUARDS THE GUARDIANS 1415 1988 analyzing the changing relationship between the judicial branch and public administration Wi thorough discussion of pluralisg synoptic and prudential approaches to administrative decision making 250 1 at 15 278 J ENVTL LAW AND LITIGATION Vol 192 2004 It will be allowed to say Six years ago in a Democratic administration this agency chose B because B was a good guess in line with Democratic political beliefs B was a perfectly respectable and legal choice If Republicans had been in control then or if the agency s prudential estimates had been a little different then the agency would have chosen C C would have been a perfectly respectable and legal choice And it follows that because if we had been running things then we would have chosen C rather than B we can respectably and legally now replace B with C without having to pretend B was wrong and C is right 26 This alternative is contingent upon the courts changing the way that they evaluate agency decision making According to Shapiro courts treat agencies as if they were engaged in a true science of synoptic public administration 262 Instead agencies ought to be allowed to act and to admit that they act as subordinate legislatures making a good deal of law within broad congressional constraints and in the face of considerable uncertainty about facts and diverse and changing political sentiments 263 This alternative may not be as radical as it might sound It does not suggest that agencies be free to do whatever they want and that science analysis and rigor be dammedithough that is a danger Rather it moves agencies from the synoptic charade to prudential deliberation 4 Just like legislatures they will do their best with tough issues in a complex and uncertain world Shapiro explains the prudential tradition as a particularly useful way to deal with the values science and uncertainty important to administrative law It need not be cynical nor relativist Rather through moral discourse and political deliberation and debate agencies like legislatures can 261 Id at 17071 262 Id at 171 According to Shapiro courts have come to expect that agencies defend their chosen rules synoptically So instead of telling the truth agencies can lie39 this is mostly What they do these days They can dress each of their guestimates about the facw their choices among statutory ambiguities their compromises to facilitate implementation and their limitation on alternatives considered in enormous multilayered costumes of technocratic mtionality it is much easier to eventually win court approval by piling on more and more synopticism than by persisting in telling the truth Id at 15152 263 Id at 171 264 Shapiro explains prudence as the belief that we can achieve some intermediate level of assurance about moral values that lies far short of scienti c certzirrty but far beyond mere personal assertion The belief that moral discourse can lead to sound moral judgment is part ofthis prudential tradition Id at 13536 265 1d Administrative Discretion in Public Lands Governance 279 make prudential policy judgments The alternative in essence recommends that courts View statutes as saying to an agency You may not go beyond certain boundaries but within those boundaries you are free to do what we the Congress normally doiour prudential best You may not do X or Y but you are free to choose prudentially among A B C and D7266 The problem with such an alternative is especially clear in the environmental arena Those advocating conservation are at a perpetual disadvantage because development is often permanent Or as environmentalists remind us extinction is forever Roads for example cannot be built and then removed after every fouryear election cycle A decision to build roads today is forcing roads on future generations that may or may not want them while a decision not to build keeps that option open for the future Thus this alternative seems to give those advocating development and extraction a dangerous advantage for it basically legitimizes permanent losses One side must only win once C The Decentralization Alternative Another possibility is the decentralization of public lands management Perhaps too much congressional delegation stems from the federal s 1 on r 39r39 strategies of centralized commandandcontrol regulation 7 The delegation debate merely focuses on symptoms says Richard Stewart instead we should focus on the underlying problem of excessive reliance on centralized directives to legislate conduct throughout a vast and varied nation 8 This says Stewart has led to political overload at the center and this overload has resulted in a massive transfer of decisional power to federal administrative bureaucracies The reasoning behind this alternative is that demands for less agency rulemaking and more centralized prescriptive law will end up making the overload situation worse First centralized and prescriptive federal rules often fail to make sense in such a complex and diverse society There is also the concern that if Congress was asked to write more prescriptive laws it would do so by subdelegating its responsibilities to committees So what is the alternative For 266 1d at 170 267 See Stewart supra note 194 at 328 268 1d 269 1d at 329 280 J ENVTL LAW AND LITIGATION Vol 192 2004 Stewart the only real solution is to forswear our excessive addiction to centralized prescription 270 For him the solution lies in reconstitutive strategies such as outright deregulation or devolution to state and local governments271 But because markets states and local governments cannot always advance social goals such as environmental protection the alternative is to reconstitute institutions in order to ensure that national goals are served without detailed central prescription of conduct 272 This means that most relevant decisions will be made within subsystems rather than at the center and that delegation will still happen but decisions will be delegated to reconstituted subsystems rather than to administrative agencies273 Stewart summarizes We need broad delegations to achieve national goals The delegations required by prescriptive regulation however are the wrong type of delegation to the wrong people Rather than giving federal agencies and reviewing courts the responsibility for designing detailed conduct blueprints or subdelegating power within Congress and the presidency we should give decisional power back to various decision makers within the various economic governmental and social institutions of our society transmitting the delegation throu new structures that will align their decisions with national goals This alternative will be attractive to those advocating more regional or localized collaborative environmental strategies and those concerned about onesize tsall political edicts It might also prove a useful way to deal with the multiple use dilemma Instead of wrestling with the concept and its abstractions in Congress multiple use would be given meaning from the bottomup It will mean different things in different places as it does now but it will be legitimized by reconstituted institutions rather than by a centralized agency The rationale behind this alternative in sum is that congressional delegation and resulting agency discretion stem from a 270 1d at 335 271 See id at 33543 272 Id at 336 273 Id at 337 274 1d at 342 See Richard B Stewart Reconstitutive Law 46 MD L REV 86 1986 describing reconstitutive strategies 275 See generally DANIEL KEMMIs THIS SOVEREIGN LAND 2001 exploring the possibility of decentralizing public lands management from the national to regional level ACROSS THE GREAT DIVIDE Philip Brick et al eds 2001 reviewing the growth of collaborative conservation in Western environmental management Behan 5147M note 21 advocating a more localized approach to natural resource policy and con ict resolution Administrative Discretion in Public Lands Governance 281 larger problemithe federal government trying to do too much and often doing it poorly Instead of delegating the tough choices to bureaucracy those choices would be delegated to collaborative and decentralized institutions andor groups Note however that the central question posed hereihow much detail and prescription should be provided in public lands lawimust still be addressed Few if any proposals recommend that collaborative processes completely replace the larger national environmental policy and legal framework Instead proponents of these processes often try to show how decentralized and collaborative processes are supplementary to national environmental laws and how they can be used to more effectively implement those lawsm In other words these collaborative proposals are most often championed within the conteXt of national environmental standards277 They thus operate within the decision making space provided by NEPA the ESA NFMA FLPMA and other public land laws The point is that as long as collaborative groups recognize the necessity of national environmental standards and federal public land laws we will still have to deal with the statutory detailadministrative discretion issue There are myriad roles that Congress and public land agencies could play in this alternative One possibility is for Congress to retain the broad multipleuse mandate while giving charge and sanction to collaborative groups to nd new ways of moving forward As long as national laws are upheld these groups would have some assurance that their plans would be faithfully implemented by agencies and funded by Congress Such collaborative arrangements would be very sitespeci c and have to be passed by Congress and signed by the President ensuring additional layers of legitimacy and accountability We would still have a case of congressional delegation of authority but this time the decentralized collaborative groups would get more decision making discretion not bureaucracy Another option is for 276 See EDWARD P WEBER BRINGING SOCIETY BACK IN 247 2003 analyzing how three prominent collaborative groups provided a supplementary system of accountability by being nested Within larger state and federal statutes and systems of accountability Grassroow ecosystem management can be a mechanism for translating topdown one size tsall laws into a placespeci c form Without violating them 277 A er all these environmental laws and standards have partly sparked the collaborative movement by giving nonindustry stakeholders a seat at the negotiating table See generally BARB CESTERO BEYOND THE HUNDREDTH MEETJNG 84 1999 In this Way collaboration can be a tool to implemeng or adapg but not circumvent public land laws 282 J ENVTL LAW AND LITIGATION Vol 192 2004 public land agencies to take the lead and use collaborative groups to give sitespeci c meaning to the national goals and discretionary language As discussed above this alternative raises the hackles of some who would like more congressional responsibility and accountability in public lands law278 Not only is Congress passing the buck to agencies they argue but now these agencies are passing it along to selfselected and largely unaccountable stakeholders While this issue is beyond the scope of this Article it is important to note that the accountability issue is more complicated than it rst appears Notions of democratic accountability have changed throughout the years and there eXists no consensual understanding of what it means279 11 could argue that the status quo is a prime example of too little accountability provided by topdown federal lands management After all accountability is often obscured by our system of checks and balances separation of powers divided party government congressional committees and various planning funding and budget problems How often does our textbook understanding of democratic accountabilityithat our elected political representatives will pay the price for poor environmental management decisionsihappen in reality Finally while this alternative does not negate the importance of the statutory detailadministrative discretion issue it does offer a host of new ways of thinking about it D The Comprehensive ReviewAltermllive Convening another public lands law review commission is another alternative worth considering Some believe that the current statutory and regulatory framework has become impractical and that it is time to embark on a systematic review of our public land laws280 Perhaps it is time to jettison the idea of multiple use and formally embrace what some consider to be the de facto governing principle of ecosystem and biodiversitybased management281 Or perhaps we should retain the multiple use mandate and instead gure out ways to 278 See Coggins mpra note 20639 LOWI 5147M note 197 279 See Weber 5147M note 276 280 In August of 2003 several leading natural resource professionals academics and interest group representatives met at the Montana Summit to consider public lands ce and the possibility of convening another public lands law review commission See James Burch eld amp Perry Brown Montana Summit White Paper Dec 11 2003 unpublished manuscript on le with University of Montana and on le with author 281 See Thomas supra note 222 Administrative Discretion in Public Lands Governance 283 streamline cumbersome or redundant decision making and analytical processes282 Should a compatibility standard and tiered use framework as found in the National Wildlife Refuge Improvement Act be applied elsewhere These and a host of other questions are ripe for comprehensive and careful review Much of the supposed gridlock found in public lands govemanceione of the factors driving the renewed interest in convening another commissionican be partly traced back to statutory language While other intervening forces are at work there is a sequence in which problematic andor evasive statutory language leads to a lot of planning and promulgating of rules and regulations which are then challenged by interest groups in court Such interest groups contend that agencies are not doing what Congress intended them to do And as discussed above courts have increasingly asked agencies to meticulously defend their decisions in synoptic comprehensiverational ways This has resulted in agencies spending a lot of time producing the best available evidence and substantial evidence on the rulemaking record as a whole 283 The story is more compleX than this but providing more detail and speci city in statutory language would most likely change this chain of events A commission might help focus attention on problematic statutory language or lack of congressional direction It could also survey many of the archaic laws or what Charles Wilkinson calls the lords of yesterday 284 and assess how well they t into today s political landscape There have been a number of such public land law commissions used in the past but it has been nearly 40 years since the last oneithe longest period ever separating their use An increasing number of people are calling for some type of comprehensive review for a number of reasonsm First the public 282 See USDA FOREST SERVICE supra note 46 283 See supra Part IVB 284 CHARLES F WILKINSON CROSSING THE NEXT MERIDIAN 20 1992 285 See Perry R Hagenstein Commissions and Public Land Policies Setting the Surge ir Change 54 DENV L J 619 620 1977 describing history of public land law commissions 286 See Jerome C Muys amp John D Leshy Whither the Public Lands in ROCKY MOUNTAIN MINERAL LAW FORTYFIRST ANNUAL INSTITUTE 301 1995 contending that the time is ripe for another review of the appropriate legislative and administrative policies for the future of the public lands see also Mark B Lambert Public Land Commissions Historical Lessons and Future Considerations 2003 Master s Thesis University of Montana providing a more recent assessment of argumenw for and against convening another commission on le with the University of Montana 284 J ENVTL LAW AND LITIGATION Vol 192 2004 lands problem might not stem from any particular law but from how they work or don t work together with other laws Therefore it might be necessary to stand back and evaluate the full canon of environmental and public land laws administrative rules executive orders and judicial decisions to evaluate their true impact on land management and policy implementation The formation of a commission might also encourage productive debate and deliberation and maybe even some compromise among stakeholders and the publicatlarge Though it is impossible to depoliticize such an undertaking a commission might provide the type of critical analysis and re ection that has become rare in Washington Certainly a lot has changed in the past 40 years from the emergence of conservation biology and ecosystem management to new law governing the National Wildlife Refuge System so there is much to learn and apply E The Policy Experimentation Alternative Another alternative is to begin a period of deliberate and careful policy experimentation in which various options and alternatives are tried and evaluated In other words let us experiment with a number of different approaches to public lands governance on a small scale and monitor what happens We can seek out cases of innovation in governance and perhaps diffuse and adapt them to different contexts287 Experimentation is already taking place in numerous forms like stewardship contracting on the national forests288 collaborative conservation289 and conservation trusts290 These and dozens of other innovative ideas could be tested within the safe harbor provided by federal environmental standards and laws291 The 287 See generally Ronald D Brunner amp Christine H Colburn Harvesting Emerienee in FINDING COMMON GROUND Ch 6 Ronald D Brunner et al eds 2002 examining the process of innovation diffusion and adaptation in collaborative conservation and natur resources governance 288 See USDA FOREST SERVICE STEWARDSHIP CONTRACTING at httpwww fs nd 39 39 39 39 39 him last visited Nov 23 2004 see generally PJ NCHOT INSTITUTE at httpWWWpinchotorg last Visited Nov 23 2004 289 See generally ACROSS THE GREAT DIVIDE mpra note 27539 BRUNNER amp COLBURN mpra note 28739 ULIA M WONDOLLECK amp STEVEN L YAFFEE MAKING COLLABORATION WORK 2000 290 See generally SALLY K FAIRFAX amp DARLA GUENZLER CONSERVATION TRUSTS 001 291 See BEAVER mpra note 32 The Natural Resources Law Center has surveyed and organized the Various proposals for changing National Forest policy Some of these proposals include new planning and budgeting approaches divestment of the federal estate additions to or consolidations of the public lands changing the USFS mission and Administrative Discretion in Public Lands Governance 285 administrative fragmentation of the public lands system is often criticized partly because of the dif culties presented to ecosystem and landscapelevel management But when thinking about experimentation this fragmentation becomes diversity and these public land units become laboratories of democracy In short we need more case examples of innovation and sustainability and many public land units governed by individualized establishment legislation could serve that function Of course not all public lands governance problems are related to statutory language292 In many landscapes with checkerboard and mixed land ownership patterns the challenges of governance go well beyond the lack of speci city in public lands law293 But in these cases experimentation becomes even more important as it has become increasingly obvious that we must look beyond federal boundaries if we are serious about ecosystem and community health294 For these complex patchworks of land we need to try a mix of institutional arrangements that are uniquely tted to place and context But despite its limitations experimentation focusing explicitly on statutory detail and the lack thereof is also necessary As a rst step it might be advisable to begin asking the American public what it thinks about public lands management and the ideas of multiple use biodiversity and what sustainability means in the TwentyFirst Century This could be done in the spirit of experimentation not with the typical public opinion survey but with the systematic use of deliberative polling 295 This approach eschews the sort of different ways that it could be done prioritizing among multiple uses marketoriented reforms and adaptive management procedures Another example is provided by the Forest Options Group a collection of interest group leaders agency of cials and policy analysw whom have proposed a number of pilot projects in the areas of entrepreneurial budgeting collaborative managemeng collaborative planning forest truss and mding models based out of gross receipts and user fees set by a rate board See THOREAU INST1TUTE THE SECOND CENTURY REPORT 2003 available at httpwwwtiorg2c html last visited Nov 23 2004 292 See generally Martin Nie Drivers of Natural Resourcebased Political Con ict 36 POL Y SCIENCES 307 2003 analyzing twelve drivers of wicked environmental con icts in natuml resources management 293 See eg Sally K Fairfax et al The Federal Forests are Not What They Seem Formal and Informal Claims to Federal Lands 25 ECOLOGY L Q 630 1999 showing the limitations of focusing solely on federal ownership jurisdiction and decision making in improving fedeml lands management 294 See generally STEWARDSHIP ACROSS BOUNDAREES Richard L Knight amp Peter B Landres edS 1998 295 See JAMES S FISHKTN THE VOICE OF THE PEOPLE 1995 286 J ENVTL LAW AND LITIGATION Vol 192 2004 unconsidered doorstep opinion in which we have become so accustomed and instead asks a sample of the public to seriously re ect and analyze policy issues after a prolonged period of study It is in many ways deliberative democracy in action and it could certainly help in considering the values beliefs and opinions of the American public on these issues Perhaps the public is more comfortable with less resource use than more or vice versa but we will not know until we ask the public to seriously consider these choices and their tradeoffs Such an experiment perhaps part of a comprehensive public lands law review may crystallize some of the central issues and choices in the debate and provide an important cue to decision makers Another possibility is to provide statutory clari cation and new legislative language on one land unit or administrative area What would happen for example if we applied the approach outlined in the Refuge Improvement Act to a national forest unit What might a tiered use framework look like in this situation and what political coalitions and majorities might form For example perhaps such an arrangement would mobilize a stronger coalition among the environmental hunting and shing communities The strong move in collaborative conservation provides myriad examples of what this alternative might look like on the ground In the Sierra Nevada for instance the controversial Quincy Library Group eventually won congressional endorsement of its plan for three national forests296 There is relatively detailed language in this legislation297 though it seems unclear at this point of how it is supposed to t with other statutory obligations held by the USFS But as discussed earlier there are also potential drawbacks to this approach If the Quincy model becomes a trend our national forest system could become as fragmented and disintegrated as our national park and refuge system lands governed as they are by a hodgepodge of establishment legislation There are also a number of innovative ways in which we might meld the strengths of legislative and bureaucratic leadership The administrative rulemaking NEPA and resource planning processes for example could become much more inclusive and participatory in 296 See generally Dave Owen Prereriptive Laws Uncertain Science and Political Stories ForertllIanagement in the Sierra Nevada 29 ECOLOGY LQ 747 2002 297 See HergerFeinstein Quincy Library Group Forest Recovery Act 16 USC 2104 2000 Administrative Discretion in Public Lands Governance 287 the future298 This could bring them closer to the democratic ideal providing an important level of accountability while also allowing room for administrative leadership and expertise to ourish NEPA is currently receiving this type of attention A number of environmental professionals have shown great interest in the prospect of using collaborative processes to improve NEPA decision making299 The US Institute for Environmental Con ict Resolution has taken this proposal a step forward moreover and is investigating how pilot projects can be used to evaluate the potential role of collaboration consensus building and appropriate dispute resolution processes in improving implementation of NEPA speci cally within the context of federal lands and natural resource management 300 A diversi ed policy portfolio is one way of thinking about this alternative301 Daniel Kemmis uses this term to capture the sort of approach that might be needed at the moment Investors dealing with similar complexity in the financial arena eep some money in stocks some in bonds and some in real es to maximize the chances of substantial gains while diminishing the risk of losing all their investments By a similar logic a public lands policy portfolio should probably now include at least three simultaneous elements comprehensive review of the entire public lands system incremental reform of the system and a deliberate period of experimentation302 Regarding the latter Kemmis reviews a number of proposals calling for legislatively authorized experiments or pilot projects that are to be implemented monitored and evaluated through various forms of collaborative governance 303 In forest management for 298 See Nie sqpra note 4 revieng changes that could be made to rulemaking and planning processes like e ectronic rulemaking ambitious scoping and embedding collaborative groups into the rulemaking process among others 299 O Connor Center for the Rocky Mountain West and Institute for Environment and Natural Resources Reclaiming NEPA s Potential Can Collaborative Processes Improve Environmental Decision Making 2000 available at httpWWWuWyoeduenIienr nepamain html last visited Nov 23 2004 300 US INSTITUTE FOR ENVIRONMENTAL CONFLICT RESOLUTION REPORT AND RECOMMENDATIONS ON A NEP PILOT PROJECTS INITIATIVE 4 Au ust 29 2001 available at httpWWWecrgovpdfU S IECR20RepoIt20to2OSenatorS 208 30 01pdflast visited Nov 23 2004 301 Daniel Kemmis Region 7 An Innovative Approach to Planning on or Near Public Lands 55 No 8 LAND USE ampZONING DIGEST 3 4 August 2003 302 Id at 4 303 Id at 5 288 J ENVTL LAW AND LITIGATION Vol 192 2004 instance the idea ofa Region 7 is explored as a way to test new and innovative approaches within an existing administrative unit in the USFS304 A number of experiments trials and pilot projects could ow from the bottomup and be housed within this virtual region region 7 of the USFS was split into regions 8 and 9 and thus basically disappeared After receiving congressional authorization and a mandate to experiment a number of different trials would be selected based on what could be learned The experimental alternative is radical in the sense that it acknowledges the need for fundamental change in public lands governance while also conservative in its scope and application It offers an opportunity to try new methods of problem solving and con ict resolution without betting it all on one highly uncertain solution In so doing it might also help deescalate con ict and minimize some risks related to changes in governance Perhaps this is why experimentation in the form of pilot projects has received support from organizations like the Society of American Foresters305 and the Western Govemor s Association306 Of course such support from groups like this may scare part of the environmental community This is understandable partly because much of the problem in governance is caused by poor implementation not just indecisive legislative language But experimentation could also be bene cial as a way to advance the next generation of conservation goals ones that will be more complex and require new tools and ways of thinking CONCLUSION The enduring question of how much detail to provide in laws and how much discretion to delegate to land management agencies is 304 1d at 39 see CommunityBased Land Management and Charter Forests Oversight Hearing Before the House Subcommittee on Forests and Forest Health of the Committee on Resources 107th Cong 2d sess 2002 statement of former Congressman Pat Williams 305 Society of American Foresters SAF Pilot Projects for Evaluating Innovative Federal Land Management Opportunities Adopted by the Executive Committee of the SAF Council on August 4 2003 on le with author Advocating the development authorization and implementation of pilot projects to test alternative approaches for managing federal forest lands to address and help resolve the ecological economic and social challenges presented by the currently complex and con ising statutory an regulatory framework that encumbers federal lands management decision making 306 Western Governor s Association Forest Health Summit Recommendations June 19 2003 available at httpWWWWestgovorgWgainitiatives reforestsummitrecs npdf last visited Oct 20 2004 recommending the use of experimental pilot projects as a Way to address forest health Administrative Discretion in Public Lands Governance 289 central to any analysis of environmental con ict and public lands governance Many divisive environmental con icts are exacerbated by problematic statutory language that tell our public land agencies relatively little about what they should be doing and a lot about how they should go about doing it At the very least this language explains Why our public land agencies have become the central brokers of con ict resolution and Why administrative rulemaking and resource planning processes are the dominant venues in which these con icts are managed The result is that these processes are stressed to their limits and agencies continually nd themselves in political quagmires Each of the alternatives discussed above have something to offer and come bundled with various risks and uncertainties Each also varies in potential effectiveness and political feasibility Whatever the preferred alternative the statutory detailadministrative discretion challenge will and must be a central part of the debate It is a tension that must be continually revisited and perhaps recalibrated and now might be a particularly good time to do so


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