Working Paper 93-13, October 14, 1993(1)

By Curt Brown

Bureau of Reclamation

(1) This paper is an edited transcript of a talk given by Curt Brown for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: crc@cubldr.colorado.edu.

©1993. Conflict Resolution Consortium. Do not reprint without permission.

Every river system in the West right now--the Platte, the Colorado, the Sacramento, the San Joaquin, the Snake, and the Columbia--are involved in endangered species issues. Major studies are being conducted to address these issues. But, everyone involved in these conflicts would agree that in most cases what is being done is management at the brink of species extinction, at the brink of resource exhaustion, or at least at the brink of full allocation of the resources. In these cases, all parties have their attorneys in court and various injunctions have been filed. The parties are polarized and the whole process is politicized. Consequently, there is not a lot of room to maneuver in these cases. How do we manage these sorts of conflicts?

I think there are approaches that can move us away from managing at the brink. The new administration, particularly the Secretary of the Interior, Bruce Babbitt, is very interested in doing this. He is seeking ways to enable federal and state resource managers to adopt ecosystem- based management strategies to protect potentially imperiled species at reduced levels of cost and conflict. The question is how can we do that?

Current studies addressing endangered species issues reflect the old model of managing conflict--that is, the legal/regulatory model. In this model of conflict, the problem is defined as a violation of the law, for example it is violation of Section 7 of the Endangered Species Act. This definition sets the boundaries of the discussion and the formulation of the alternatives to resolve the problem. Solutions are motivated to meet the legal requirement. The problem is solved within the legal system by imposition of a judgement and a direction by the courts to do something--it may be a change in dam operations, a change in river flows; it may be the setting aside of an area for recovery of a species. But usually it is a one-shot solution that is supposed to solve the problem.

There are some benefits to that system, but it has some drawbacks, too. One is that this process constrains the issues. My experience with endangered species conflicts is that the law often forces the parties to focus on issues that are not really their main concern. One example is a recent case involving the Forest Service. The Service lost a case in which they tried to establish federal reserved water rights in the National Forest for in-stream flows. They had to argue that case based upon arcane geomorphology relating flows to maintenance of the stream cross-section, because that issue is given legal standing in a very old law. In my view, what they really wanted to do was protect the water in the stream for aesthetic, recreation, and biological purposes. But the law forced them to argue on grounds that were really separate from their main concerns.

Similarly, the Platte River, particularly the central Platte, is under Section 7 consultation on potential impacts to whooping cranes. The Bureau of Reclamation has been in a long-term process of negotiating with parties on that. But, I've noticed in facilitating some of those negotiations that environmental groups are hesitant to bring to the table issues relating to the many riparian values that water in the Platte River produces--because those values are not recognized in the law. The only thing the law recognizes is the endangered species and the impacts on those species. So we end up discussing and formulating alternatives to address endangered species issues when really we are interested in a much broader range of issues. One party which will propose some way of meeting the endangered species problem, which they think is the issue being discussed, and then the other party is not happy because it doesn't solve all the unnamed agenda items that are not on the table. The result is confusion and frustration.

Another problem with using the legal system to solve these types of conflicts is that it often forces decisions before there is sufficient knowledge to make the decision. The traditional process involves listening to the evidence and making a decision-- that is the end of the process. Often judges are asked to assess, and to rule on, the impact over the next twenty years of some action on a species that is not fully understood, where the variation in the environment and the species could be considerable. The result is often poor decisions, or inflexible solutions.

I am not advocating completely dismissing the legal systems as an approach to these conflicts. Certainly the many successful environmental lawsuits have served to bring to the attention of powerful groups the environmental values they were impacting. One of the strengths of the legal system is the protection it provides less powerful groups. But things have changed. There is now virtually an equilibrium between the power of environmental groups and the traditional water- development groups. The following is an example of such an equilibrium. Each year there is a conference of the National Water Resources Association, which consists primarily of the established water development interests in the West. It is traditional at the conference to have the Commissioner of Reclamation answer questions from the audience. At the most recent conference, a water developer asked: "When there is more than one environmentally sound solution to a problem in water development, why does the Bureau of Reclamation always support the solution advocated by the Audobon Society, the Wildlife Federation, and other such groups?" Even ten years ago I would have found such a question astounding. But that is a common view of developers today.

Because of this equalization of power, we can start to look at other models for solving these conflicts. The model that I advocate, and suggest that we are moving towards, is the negotiated adaptive management model.

First, in this model conflict is defined not as a legal violation, but as a divergence of interests and a competition of interests among parties. Therefore, the goal of the process is to find a way to meet the interests of the parties, rather than just to meet the needs of the law. So anything is on the table if it's an interest of a party. Secondly, it is important in this approach to have a lengthy pre-negotiation process. In the legal model there tends not to be much action and interchange between the parties until the lawsuit is filed. In the negotiated adaptive management model it is important to try to get parties together who have competing interests, even if there is no critical legal problem yet. Many can be done at this stage. One is to start negotiating about the process for resolving disagreements. The parties can talk about what initial steps to take. Also, they can discuss another important aspect to this approach, which is the monitoring program.

This model recognizes that knowledge is always incomplete. So instead of trying to solve things forever in one shot, small steps are taken and initial actions implemented. The results of these first steps are then monitored, and, if necessary, adjustments are made. Part of the negotiation process is to negotiate the process of monitoring and the process by which one can formulate new proposals and new actions in response to changing conditions. Also a process for resolving disagreements is negotiated.

An example is the Platte River Management Study that has been going on for many years to address water development and environmental issues on the Plate. The parties have been meeting regularly for several years, discussing issues, establishing a monitoring program, and are now just to the point of formulating actions for implementation.

In the newspaper recently was another example of a process that follows this model. It is the Gateways Project for Rocky Mountain National Park. People in the community surrounding Rocky Mountain National Park have realized that they have some emerging conflicts about growth and impacts on the Park. They have decided that they ought to get together now, start talking, and figure out ways to deal with those issues before there is a crisis.

One of the other good things about this approach is that it recognizes that there are many parties and issues involved in these conflicts, not all of which have legal standing. In the political world, all parties and all issues have to be recognized and some way found to try to address them. The problems have to be solved over the long term through approximation and adjustment. We never have enough knowledge to foresee consequences of actions far enough down the road to solve these things in one shot.

There are some barriers to adopting a negotiated adaptive management approach to problem solving. One is financial. It is difficult, for many reasons, to get funding for long-term negotiation that may or may not lead to anything, that doesn't have an immediate product, that doesn't solve the problem immediately, and involves monitoring programs that may go on for an indefinite period of time. It's hard to sell these things politically or get financial support. Results are not seen within the term of a congressperson, products are not easily defined. And in many agencies and for many interests groups as well, the people who decide how to solve conflicts are attorneys. Their tendency is to go to court especially when there is a history of success from going to court.

Institutionally there are many difficulties. One is unclear jurisdiction. Prior to a problem becoming crystallized or formalized in a lawsuit, it is hard to know who is responsible for managing the problem. Usually it is shared among many entities, many agencies. Psychologists talk about the diffusion of responsibility as being an impediment to action--certainly that happens in these cases.

Also, getting people to develop trust in a dispute resolution process that is outside of the courts is difficult. There are many psychological barriers to overcome. One of the most difficult barriers is that this approach requires leaders to look for emerging conflict and to devote resources to it, to raise that conflict up. That is usually exactly the opposite of what managers want to do. They fight many brush fires and conflagrations, so it is very hard to convince them that they ought to take resources away from those things that are at a crisis point and put them in to long-term conflict management. It is hard to get all the parties involved until things are at a crisis stage. It is also difficult to negotiate over what people view as their rights; and much of the endangered species work involves both rights and symbols of much larger issues that are hard to negotiate.

Also, people and politicians want to solve a problem, they want to settle something, they want to take care of it and be done with it. That is not really what resource management is about. Mick Hollings's early work in adaptive resources management recognizes that we will always need to be adjusting our management practices.

Another problem is the political problem. Often, politically, it is more advantageous to interest groups for them to be involved in a major league battle than to engage in quiet negotiation. It helps fund raising. Being in court has a lot a visibility; it is not as good for the organization to be involved in long-term, low-visibility negotiations. The Nature Conservancy is an exception and has been remarkably successful. A lot of other interest groups are beginning to take a different perspective on this.

There are a lot of hurdles to get over, but I do think that things are changing. We are seeing a lot of changes in institutional barriers to conflict resolution. We are getting more and more tools, particularly in the water resources area, to manage water, to move water around, and to compensate people that hold rights so that they can give water up to other purposes. That is a hopeful sign. BATNAs of key players change rapidly and they are seeing that their best opportunity for meeting their needs may not any longer be going through the courts, but entering into some long-term negotiations. I think environmental groups are beginning to see that Section 7 suits, while they may win the battle, lose the war. They are seeing that it is more important to find some way to engage in proactive, ahead-of-the-fact negotiations at the watershed level, the broad habitat level, and the ecosystem level.

My recommendations are to avoid letting things come to a point where one-shot, final decisions have to be made. This type of approach heightens the conflict and polarizes the issues. Try to get parties involved in a dialogue as soon as possible. Start with whomever will participate and build from there. A lot of parties in these disputes will say that they can't or they don't want to enter into negotiation or a dialogue, but my experience is that if you get some of the players involved, many of the rest will come if only to keep an eye on what the others are doing. Critical mass can build rather quickly.

There are a lot of things that can be done with groups to start building trust. Data sharing or joint data collection is an important way to build trust. Also, getting the groups to agree to try to seek funding for the activity is a way to have them work together. Once funding for the activity is received, all parties have something invested and they will defend it against budget cutting. If nothing else, people can usually agree to start collecting base-line data, which is very important for long-term management. Parties should be rewarded for negotiated approaches. Agencies, particularly, can do this. Many interest groups need financial assistance simply to attend meetings, or begin collecting data. And an amount of money that a public agency would consider trivial can be a boon to an interest group, and a major incentive to negotiation.