OIL AND GAS AND THE PUBLIC LANDS:
CONFLICT AND RESOLUTION
by
JULIA MARIE
ONDOLLECK
B.A. University of California, Davis
(1977)
M.C.P. Massachusetts Institute of Technology
(1980)
Submitted
to the Department
of
Urban Studies and Planning
in Partial Fulfillment of the
Requirements of the
Degree of
DOCTOR OF PHILOSOPHY
at the
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
May 1981
O
The
and
Julia M. Wondolleck 1983
author hereby grants to M.I.T. permission to reproduce
to distribute copies of this thesis document in whole or
in part.
Signature of Author
Dep
tment:b' Urban Studies and Planninr
g
~May
9, 1983
n/\~~~
Certified by
Lawrence S. Bacow, Thesis Supervisor
Accepted by
Chalrman, Depar
ental Ph.D. Committee
MASSACHUSETTS
INSTITUTE
OFTECHNOLOGY
Archives
JUL 21 1983
LIBRARIES
OIL AND GAS AND THE PUBLIC LANDS:
CONFLICT AND RESOLUTION
by
Julia Marie Wondolleck
Submitted to the Department of Urban Studies and Planning
on May 9, 1983, in partial fulfillment of the
requirements for the Degree of Doctor of Philosophy in
Urban and Regional Planning
ABSTRACT
Conflict pervades decisionmaking about the use and allocation
of
public land resources.
While conflict has always
accompanied these decisions, today its consequences differmarkedly from the past.
The administrative decisionmaking
process is not decisive.
Decisions,
once made,
are
frequently
undermined
through
administrative
appeals,
lawsuits and Congressional intervention.
The current malaise in public land management can only partly
be explained by the magnitude of the stakes involved.
As
seen in the case of oil and gas leasing
and permitting
in the
national forest system, the process is not decisive because
it is structured to determine scientifically and technically
justified decisions when such decisions do not exist.
Right
decisions are elusive.
As a result, the administrative
decisionmaking process is not sufficiently informative or
convincing and, moreover, is divisive.
Several
factors
contribute
to this failure
of
the
administrative process.
The objectives of public land
management have expanded since the scientific paradigm of
public land management was developed during the progressive
era of conservation.
New policies promoting non-commercial
uses of public lands have been established by Congress.
These new policies reflect the increasing demands being
placed
upon
public land resources.
They
legitimize
recreational ends, endangered species protection, wilderness
preservation, wild and scenic rivers protection and other
objectives that compete with the commercial timber and
mineral development objectives that originally dominated
public lands policy.
While the objectives have expanded,
however, the administrative process has remained intact, one
premised in conservation and use and adhering to
the
scientific paradigm.
2
Past prescriptions for reforming the land management process
have
been
targeted at either
curbing
administrative
discretion
or expanding the agenda of land management
agencies.
Both sets of prescriptions assume that scientific
land management expertise is capable of making the inevitable
value judgments inherent in satisfying the complex array of
land management objectives. The Forest Service, perhaps more
than any other administrative agency, has responded to
proposed reforms by improving public participation in its
decisionmaking processes. But, these efforts have failed and
the problem persists.
No administrative structure exists in
which disputes might be resolved and the inevitable tradeoffs
might be made in a manner that satisfies all affected groups
that their concerns have been accommodated as well as
possible.
Past
experience and research in environmental conflict
management indicates that some particularly controversial
A
public land management disputes might be resolved.
mechanism should be institutionalized that is specifically
designed to recognize the legitimate claims on public land
resources and resolve the disputes that arise in trying to
The proposed process applies the
satisfy these claims.
concept of "principled negotiation" in bargaining between
parties to these disputes and in building consensus on
The
proposed decisions and rules for the Forest Service.
decisive
will
be
a
more
outcome,
if
successful,
decisionmaking process.
Thesis Supervisor: Dr. Lawrence S. Bacow
Associate Professor of Law
and Environmental Policy
3
ACKNOWLEDGEMENTS
To write a dissertation requires much more than a pen,
It involves the collaborative efforts
paper and an author.
of many different people in acquiring and then analyzing data
as
well as in providing
and moral support.
financial
not-to-be-discounted
the
As such, I am indebted to many people.
Foremost thanks goes to my faculty committee at MIT.
Lawrence Bacow tirelessly reviewed and commented on draft
I am grateful for
after draft as this dissertation evolved.
his
lose
and
patience
direction
sight
when,
of
encouragement
and,
the forest
for
the
trees.
My
his
for
moreover,
I
as happens with any dissertation,
would
thanks
to
Lawrence Susskind for sharing his experience and ideas on
environmental conflict management and for his many insights
throughout this process and to Alan Altshuler for providing a
I
much needed political science perspective to my analysis.
feel honored to have had this committee read and comment pn
my work and to share their ideas with me.
Throughout my research, many individuals gave generously
of their time in helping me to understand the Forest
process
permitting
and gas leasing and
the oil
Service,
and the
specific events of several cases. I would especially like to
thank R. Max Peterson, Al Reuter, Gary Marple, Syd Gray and
Phil Hocker of the Sierra
Dave Carty of the Forest Service;
Foundation;
Kea Bardeen of the Mountain States Legal
Club;
of the
Clark
Story
of Getty Oil Company;
Dick
Hamilton
Jackson Hole Alliance for Responsible Planning;
Peterson of Peterson, Odell and Associates.
and,
C.M.
My gratitude to Matt Cullen and the Lincoln Institute of
Land Policy, Inc., for their generous financial support and
much needed independence during this research. Additionally,
I would like to thank John F. Hennessey for his fellowship
support during my early years at MIT when the ideas for this
research were just being developed.
Finally, no words can express the debt I owe my family
and friends who were both patient and supportive throughout
Special thanks to Steve Yaffee, Martha
this long process.
Lampkin and Mike Elliott.
4
TABLE OF CONTENTS
page
ABSTRACT .................................................
2
ACKNOWLEDGEMENTS .........................................
4
CHAPTER
1:
CONFLICT AND THE PUBLIC LANDS ............................
The Public
Land Management
Why Conflict Persists
Paradigm .................
8
9
...............................
11
The History of Public Land Management
.............. 13
Public Lands in the Late Nineteenth Century ..... 15
The Progressive Era of Conservation .
............18
Preserving the Paradigm
.......................... 29
The Grazing Lands
...............................
32
A New Era in Public Land Management
............. 35
The Case of Oil and Gas and the National Forests .... 41
Simple Explanations But No Simple Solutions ..... 44
Administrative
Conclusions
Decisionmaking
At An Impasse ..... 46
.........................................
48
References .......................................... 51
CHAPTER
2:
THE OIL AND GAS LEASING AND PERMITTING PROCESS ........... 59
The Mineral Leasing Act: A Brief History ........... 59
Decisionmaking Under the Mineral Leasing Act ........ 63
Stage
I: Preliminary
Investigation
.............. 67
Surface Geophysical Analysis ................67
Seismic Testing ............................ 68
Federal Requirements: Prospecting Permits ....... 71
The Federal Leasing Process
....
.................
72
Over-The-Counter
Leases ......................
73
The Simultaneous Leasing System.............. 79
Known Geologic Structures .
...................
80
Stage
II: Exploratory
Drilling ..................
81
Federal Requirements: Permits to Drill.......... 82
State and Local Involvement..
................
86
Stage
III: Field Development
and Production ..... 86
Federal Requirements: Licenses.................
Stage IV: Abandonment ...........................
The Appeals Process.................................
Conclusions .........................................
88
89
89
90
References ..........................................
92
5
page
CHAPTER
3:
THE POLITICS OF OIL AND GAS LEASING AND PERMITTING....... 99
The Many Publics Involved in Decisionmaking .........
100
The Process in Practice .............................
106
I.
The Process Is Not Sufficiently Informative or
Convincing ...................................... 111
The Limits of Technical Expertise ............
111
Assessing the Relative Values of Resources...118
Even Experts Disagree ............
..........
127
II. The Process
is Divisive...............
..........
135
The Process Promotes Distrust...... ...........136
The Process Promotes Adversarial Behavior.... 138
The Process Encourages Strategic Behavior.... 141
III. The Process is Not Decisive ..........
..........
146
The Conservation
of Conflict .......
..........
149
Policymaking ................. ...
....... 150
Policy Implementation......... .......... 154
Where There's A Will There's A Way. .......... 162
Conclusions
...............................
. .. .......
168
References ................................ .... ......1 71
CHAPTER
4:
WHY THE PARADIGM FAILS .............................. ..... 183
Public Land Management in Transition..
The Heart of the Paradigm
.....
185
.....
186
Challenged..
The Congressional Response to Changing Demands. ..... 193
The Wilderness Act of 1964............
.......... 195
The Wild and Scenic Rivers Act
....... .........
203
The Endangered Species Act ...................... 206
The Federal Clean Air and Water Acts............208
Multiple-Use and Procedural Requirements ........208
Mineral Leasing Reconfirmed .....................213
Making Decisions When Objectives Conflict:
The Bob Marshall Case .......................... 214
Why The Congressional Inconsistencies? .............218
The Limits and Consequences of Judicial Review......223
A Problem Compounded by Uncertainty .................235
The Many Dimensions of Uncertainty ..............236
Conclusions.........................................
242
References
CHAPTER
..........................................
245
5:
WHY THE PROBLEM PERSISTS ..........
........
Past Perceptions
..............
255
of the Problem and Prescriptions
for Reform ......................................
257
A Question of Professional Ethics .......
...259
A Question of Unbounded Discretion ..............262
6
P age
AgencyBias.
............ ...........
AgencyCapture........................
·
·
·
·
·
·
·
·
·
·
·
·
·
263
273
·
The Problem of Administrative Discretion:
A LargerView
.........................
276
278
Public Administration and the Public Inte rest...279
The USFS Decisionmaking Process..........
283
The Forest Service Capacity for Change.......jrest ... 289
One Case Examined: Public Land Management....
·
·
·
·
·
·
·
·
·
·
·
·
·
·
·
· ··
·
·
·
·
·
,··
.
, .. .. ...
Retargeting Reform:
, .. .. ...
The Public Land Management Paradigm......
.
.
.
.
.
.
293
References................................... .......
....... 299
CHAPTER
6:
EIGHT STEPS TOWARDS RESOLVING
OIL AND GAS LEASING AND PERMITTING DISPUTES .......
....... 306
Politicizing vs. Depoliticizing the Process........ .309
Environmental Conflict Management......... ........
311
Eight Steps Towards Resolving Oil and Gas Di sputes..315
Step 1: Triggering the Process........
........ 319
Step 2: Convening Representative Group5. ........
322
........
Step 3: Fact-Finding..................
Step 4: Identifying Issues of Concern. ........
Step 5: Developing Alternatives....... s.. . ........
Step 6: Agreement on Proposed Decision ........
Step 7: Public Review.................
........
Step 8: Forest Service Implementation. ........
Prospects and Potential Problems ..........
........
Financing
....
................
........
The Federal Advisory Committee Act.... ........
The Question
of Wilderness............
Why Do These Negotiations Not Occur No
What is the Role of the Forest Service
326
334
336
342
343
344
345
350
351
........
353
........
355
356
? .........
Is Conflict Management a Coopting Strategy? ....357
References
..........................................
7
359
CHAPTER
1
CONFLICT AND THE PUBLIC LANDS
When President Ronald Reagan appointed James Watt as his
Secretary
of
Interior,
the
public
immediately thrust into the limelight.
headline
issues
news
the western dailies
and
with this topic.
concerned
public
where
the
lands
New
York
little-
usually
major eastern newspapers
other
were
issues
Watt's proposals were
come first as well as in
customarily
Times
Watt's vision of the proper
immediate
his
and,
predecessors
as
such,
startling transformation of public land policy.
were
positions
and
policies
supported
him,
hardly
the
unusual.
demands of
when
combined
the
His
history.
lands
Decisions
Rebels"
counter-claims
generated
at
that
reads
times
who
of
mirror much of public
governing how the
public
should be used have always been controversial.
conflict
a
development
"Sagebrush
conservationists and preservationists,
seemed
But, Watt's
western
with the
use
that
disposal of public lands was in direct contrast to
and
of
in
lands
by these decisions has been
the history of public land
law
lands
In fact, the
so
intense
development
like the same action-packed Wild West stories that
it
inspired.
That public land management decisions generated conflict
in
the
surprise.
resources
past and continue
to do so today should come
as
no
These decisions allocate the tremendous wealth of
contained in the public lands.
8
With so
much
at
it
stake,
by
affected
decisions
many
groups
land management decisions will actively
pursue
should
only
favorable
to
the
be expected that
their
interests.
One
critical
sets today's conflict far apart from that of
difference
the
however. Today the process by which decisions are made
past,
is failing; decisions, once made, are unable to withstand the
of
attacks
inevitable
are
Decisions
administrative
consistently
appeals,
interest
groups.
undermined
through
dissatisfied
being
lawsuits and congressional
action.
The policies of Secretaries of the Interior and other federal
no
officials,
little
effect
seem to have
matter how popular or despised,
on the indeterminate nature of
public
lands
decisions.
thesis
This
conflict
lands
decisionmaking
posed
argues that the problem
results
today
process,
an
from
by
public
inadequate
one that was established to conform
to a public land management paradigm that was developed in
a
different time, responding to different problems and based on
assumptions that no longer hold true.
The Public Land Management Paradigm
Public lands conflict today is generated by the question
of who gets what:
development;
should
to wilderness
development
or
wildlife
management?
These are resource allocation questions that have very
distributional
century
a
or
timber or recreation; light recreation or heavy
minerals
recreation;
land be allocated
consequences.
In contrast,
at the turn of the
very different question confronted
9
large
policymakers.
At
that
debates
time,
the central question
was
not
fundamentally,
moreover,
The
"who
"what
answer
"who
gets
should
principles
was
clear
what?"
decide
to
the
era and their response
development
of
persists
today.
who
dominated
public land
policy
but,
much
more
gets
what?"
and,
should they use in
progressive
the
that
deciding?".
conservationists
and activism
management
of
led
the
to
the
paradigm
that
Conservationists argued for rational
land
management based in scientific expertise:
Since resource matters [are] basically technical in
nature...technicians, rather than legislators, should
deal with them.
Foresters should determine the
desirable annual timber cut;
hydraulic engineers
should establish the feasible extent of multiplepurpose river development and the specific location of
reservoirs; agronomists should decide which forage
areas could remain open for grazing without undue
damage to water supplies. [1]
The proponents
of this paradigm
dimensions of land management.
the
consequences
did not ignore the
political
Instead they attacked head-on
of political land management and
compared
them with the virtues of scientific land management:
Conflicts
between
competing
resource
users,
especially, should not be dealt with through the
normal processes of politics.
Pressure group action,
logrolling in Congress, or partisan debate could not
guarantee rational and scientific decisions.
Amid
such
jockeying for advantage with the resulting
compromise, concern for efficiency would disappear.
[2]
Professional
supplant
land
managers
political
decisionmaking.
Their
succeeded in
decisionmaking
their
with
paradigm continues today
public land management.
10
effort
to
scientific
to
govern
Why Conflict Persists
This land management paradigm successfully prevailed for
Today,
more than fifty years.
when
however, it frequently fails
decisions must be made.
controversial
several reasons why land management decisions
offered
so controversial.
have
Analysts
prove
Common attacks on public land agencies are
either that one resource user
based upon one of two claims:
to
or another has amassed enough power over an agency
group
control that agency and ensure that all decisions advance its
best interests (the capture theory);
[3] or, that the agency
itself
has amassed enough power to ignore all resource
groups
and
make decisions that enhance
the
user
organization's
power, prestige and managerial discretion. [4]
This thesis rejects these two explanations.
consciously
decisions
making
that
defy
Rather than
"public's
the
interest" because they are either captured by a single
or
are
serving
management
make
their
agencies
decisions
political
own
group
land
public
ends,
are generally trying in good
to
faith
The
interest."
that promote the "public's
problem arises, though, in that recent developments in public
land
power
in
uses
and,
result,
of
natural resources law have changed the balance
and
public land management by legitimizing
thereby,
decisions
the claims of their
many
advocates.
land
As
a
that fail to address the interests of any
particular resource user group are not viable decisions; they
are
land
successfully contested as soon as they
are
premised
on
management
paradigm,
11
made.
The
rational,
is
resource conservation and use,
scientifically-based
not
able to accommodate the more recent preservation and
equally
non-commercial
objectives.
The
processes
decisionmaking
oriented towards maintaining long-term yields from the public
lands are not effective at determining appropriate levels and
allocations
of non-commercial resources such as
wilderness,
wildlife, recreation and scenic amenities.
transition
The
from
public land
management
policies
geared toward late 19th and early 20th century conditions
new
policies adjusted to late 20th century objectives
for
a
of this public
revision
it
Moreover,
decisionmaking
reform
demands
land
management
of
the
to
calls
paradigm.
administrative
process in concert with an updated
paradigm.
This process must be designed to recognize and take advantage
of the current balance of power among competing resource user
groups and the legitimate claims of each.
the
only
Failure to resolve
inevitable differences between the many affected
that the current impasse in
guarantees
groups
decisionmaking
will persist.
This thesis analyzes the current land management problem
in
the context of oil and gas leasing and permitting
national forests.
current
decisionmaking
administrative
it differs
so
doing,
better
First,
the
the history that gave rise to the
process
is
reviewed.
Then,
the
process is studied to determine where and why
in practice
the
in
from the theory of land management.
In
today
is
nature of public land
management
understood and the type of policy process best suited
12
to
this type of policy
concludes
by
designed
to
problem
proposing
is identified.
specific
The
analysis
administrative
better accommodate all
affected
reforms
interests
in
public land management decisionmaking and, thereby, to reduce
the now inevitable opposition to land agency decisions.
The History of Public Land Management
The
federal
nation's
land
public
Some
lands
government
-- 740
-- contain tremendous
and
one-third
million acres.
of these resources
grazing
controls
These
and
agricultural
wildlife
and
wilderness.
lie beneath the surface:
coal,
oil shale, helium, copper,
and oil and gas.
potash,
the
-- the
resources.
surface:
lands,
recreational and scenic amenities,
lands
varied
are found on the
of
timber,
habitat,
Others
phosphate, sulfur,
[6]
The resources comprising the public lands are managed by
several
different federal agencies.
Interior
Bureau
has
of
jurisdiction
Land
The Department of
over public
Management (398 million
lands
through
acres) ,
Fish
the
its
and
Wildlife Service (43 million acres) and National Park Service
(68 million acres).
the
The Department of Agriculture,
US Forest Service,
controls 187.5 million
through
acres.
remaining
acreage is split amongst many
different
including
the
Transportation
Energy.
The
Departments of
Defense,
The
agencies
and
[7]
history
of the public lands -- their
13
acquisition,
disposal and the gradual development of laws governing
management
taming
-- is hardly a dull story.
It is a story of a relentless
wealth.
The
management
Congress,
of
It is a story of the
of the "Wild West" and the forces of
"evil."
land
history
process
the courts
management
is
leading
to
their
"good"
against
struggle
for power and
today's
public
one rift with political
land
battles
in
and federal agencies.
It is a history
agencies
maintain
fighting
to
their
administrative discretion and therefore their ability to make
"professional" decisions.
Public
phases.
The
acquisition
thirteen
(ie.
land
policy
first
of
has evolved
through
phase (1781-1867) covered
three
the
land by the United States from the
states,
through purchase from European
major
massive
original
monarchies
the Louisiana Purchase and Alaska Purchase) and through
transfers
fifths
from Mexico.
Through
these
acquisitions,
of the nation's land was at one time or another under
the jurisdiction of the federal government.
The second phase
(1872-1934) saw the massive disposition of these same
by
four-
lands
the federal government to promote development of the
territories
and generate revenues for the General
new
Treasury.
Indeed, the Treasury Department was the nation's first public
land manager.
The third and current phase (1891-present)
is
characterized
by
to
a shift from disposal of public
lands
federal government retention and management. [8]
For
period
the
purposes
of this study,
in federal land management
14
the
important
is the late 19th
and
time
the
early
20th
government
centuries.
shifted
encouraging
During
from
conservation.
time
the
a policy of disposal in
to
development
this
a
policy
of
acknowledge the commercial value of these lands;
public
predominant
arguments,
embraced
management
could
sentiment,
the
more
by
influenced
view that
hopes
federal
began
to
a time when
scientific
ownership
directly serve national
of
and
retention
was a time when the government
It
federal
needs
and
than
could disposition.
The Public Lands in the Late Nineteenth Century
the
As
readily
disposal
nineteenth
programs were contributing to wasteful
these
government's
required
close,
it
was
apparent that the federal government's public domain
development
Rather than "taming" the
and lawlessness in the West.
west,
a
century came to
wild
programs were encouraging its destruction.
and
policies had not been well-conceived
The
they
reassessment and revision.
Many "settlers" were using the homestead laws to acquire
public
for
lands
non-agricultural
purposes.
disposal programs run from Washington D.C.,
[9]
With
there was little
field surveillance 2000 or more miles away in the west.
federal employees in the General Land Office,
never
even
seen
the lands
they
were
in
Most
fact,
had
Often,
disposing.
individuals acquired land intending only to speculate on, not
develop,
Office
its
resources.
agents
spent
In
the
1889 alone,
equivalent
15
of
55 General
30
Land
man-years
investigating
accounted
for
revenues
fraud.
Timber
581 of these cases and $3-6 million
to the federal government.
widespread.
timber
3,307 cases of land
One
claims
GLO
he
[10]
trespass
in
lost
Timber fraud
was
land agent estimated that 75% of
the
reviewed
were
fraudulent.
pessimistic agent put the figure at 50%.
[11]
A
less
Illegal entry
by individuals to cut timber or extract minerals was rampant.
Timber
reflected
cutting
the
management
practices by private
bountiful
principles.
supply
of
lumber
forests
companies
and
lack
of
Private companies paid considerably
less than market prices for public timber.
As a result, only
first rate timber was taken. The still marketable second rate
timber was left as waste as lumber companies moved on to
next
forest.
the
These "cut-and-run" practices created extreme
fire danger and disease problems throughout the forests.
1871,
a
single forest fire destroyed the town
of
In
Pestigo,
Wisconsin, killing 1500 people and burning 1 million acres of
forest.
to
[12]
Additionally, the failure of private companies
reseed and restore cut areas increased erosion and led to
flooding in some areas.
mismanagement
support
for
[13]
These visible consequences
eventually helped professional foresters
forest retention and management and
gain
helped
institutionalize two goals of forestry management:
of
to
watershed
protection and fire prevention.
The western range hardly fared better than the
With "free" grazing lands everywhere,
rapidly multiplied.
forests.
cattle and sheep herds
The classic "tragedy of the commons" led
16
to
in
overgrazing
the liberty to fence off portions
use
programs were failing because
homestead
The
without
developed
conditions.
agricultural
an
required
much
workable
farms.
larger
Western
the
to
East
[16] The more promising agricultural
When settlers did
violence
move into an area to farm under the Homestead Laws,
there.
make
irrigation programs were
areas were also the better grazing lands.
already
settlers and the stockmen
between
arid,
very
being
The West,
Unlike the East,
had
the programs were based
acreages than in
necessary in the West.
erupted
those
they
of
understanding
Instead,
farming needs.
Eastern
upon
down
[15]
barriers.
been
own
of the range for their
stockmen would inevitably break
rival
but
Some stockmen took
[14]
the original vegetation.
replacing
forage
substandard
with
areas
major
grazing
[17]
it
Finally,
and
range
forests,
was becoming obvious that the best western
agricultural lands were
rapidly
being
acquired by private interests and that the federal government
be
soon
would
wanted." [18]
Indeed,
with
lands
"the
when the dust finally
nobody
settled,
what
the
were the more marginal mountainous forests and
remained
condition
this
management,
range and desert.
substandard
uncultivatable,
extent,
literally,
left,
83%
of
BLM
after
still persists;
range lands are
still
To a
large
decades
of
considered
substandard for grazing purposes. [19]
Both
the
federal
government and
17
private
land
users
acknowledged
domain.
the
Cries
forcefully
deteriorating
for
from
Preservationists,
condition
of
the
reform came from many fronts
preservationists
and
public
but
most
conservationists.
who viewed any development of some
public
lands as undesirable, successfully fought to have Yellowstone
National
Park set aside as the first national park in
1872.
One historian wrote of their efforts:
"The bill to establish
Yellowstone
the
succeeded
public-interest
after
lobbying
one of
campaigns
most
in
formidable,
history."
[20]
Preservationists
continued their efforts to preserve scenic
forest lands and,
in 1891,
were able to obtain an amendment
to the General Land Law Revision Act that gave the
authority
The
to
create forest reserves by
Act contained
forests
once
continued
no provisions
reserved,
to
be
proclamation.
for the management
however.
preoccupied
The
with
President
federal
[21]
of
these
government
development,
not
preservation, of the West. Forest Reserves and National Parks
could
The
not remedy public domain problems on a broader
conservationist's
management
seemed
to
alternative
provide
the
of
scale.
scientific
solution
to
the
land
land
problems then plaguing the west.
The Progressive
The
Era of Conservation
history of the conservation movement has been well-
documented
by
the historian
Samuel
P.
Hays.
rejects
the
traditionally accepted belief
protest
and
unified support gave birth to the
18
that
[22]
Hays
widespread
conservation
rather than of democratic protest,
point of applied science,
historic
the
understand
must
one
that
vantage
argues that "it is from the
he
Rather,
movement.
the
of
role
conservation movement":
Conservation,
was a scientific movement,
all,
above
its role in history
and
arises from the
implications
society.
modern
and technology in
science
of
as
Conservation leaders sprang from such fields
and
geology,
agrostology,
forestry,
hydrology,
active in professional
Vigorously
anthropology.
circles in the national capital, these leaders brought
the ideals and practices of their crafts into federal
Loyalty to these professional
policy.
resource
ideals, not close association with the grass-roots
set
public,
the
tone
of
the
Roosevelt
Theodore
Its essence was rational
conservation movement.
planning to promote efficient development and use of
resources.
all natural
[23]
The professional orientation of the conservationists was
not universally accepted nor immediately adopted by Congress.
To
the conservation ideals in their
implement
wresting power from the
entail
would
of
hands
dedicated
professionals
management.
It
interests
commercial
it in
in the west and in turn placing
already entrenched
required
already
counter
the
Congress
needed
disposal
programs,
well-supported
support
political
to
interests.
Western
land
the
At the time,
reason to change.
the
land
in
to conservation
tremendous
form
purest
taxes,
combined with tariffs and excise
generated most federal revenues. [24]
Success
social
for
towards
slowly but was facilitated by a
reform movement that advocated management
municipal
entering
came
the
the
and industrial management.
progressive era of
appropriate role
19
of
political
The
parallel
principles
nation
reform;
government,
was
values
science
and
industry
in
entering
a
society were being
transformed.
Society
technological age wherein scientific methods
management and decisionmaking were perceived to be a
that would improve living conditions,
overcome
[25]
godsend
create efficiency, and
Society was also leaving the frontier period
which rapid growth and development were both
and rewarded.
the
of
political corruption in urban centers as well as in
the West.
during
was
[26]
Now it turned
to managing
desired
the cities
and
public domain and to gaining control over those who
exploited
them in the past;
passed
in
1890.
Association,
Daughters
similar
power
The Sherman Anti-Trust Act
Groups
General
such
as
Federation
the
of
American
Women's
objectives in the nation's cities,
politically
administrative
structures
municipal
management,
planning.
[27]
profession
was forming.
corrupt
based on
service
Similarly,
the
Civic
theories
provision
American
and
pursuing
trying to
influences
was
Clubs
of the American Revolution were actively
from
had
and
wrest
install
of
efficient
and
rational
city
planning
These groups gave their support to
the natural resource conservation movement.
Progress
in
institutionalizing the conservation
ideal
was fostered by the respected and influential standing of its
advocates.
well-bred,
Scientists and economists,
they were
well-educated and traveled in the same circles as
the
Congressmen they sought to influence.
was
in
valued
a
and
typically
period during which knowledge
respected.
This
20
attitude
[28]
The country
and
science
we-re
was
reflected
in
Congressional decisionmaking.
By
that
time
it
As one historian describes it:
had also
become
a
practice
for
Congress and state legislatures to appoint special
committees authorized to employ experts and carry on
extensive investigations,
before undertaking
the
business of lawmaking relative to such intricate
matters
And,
as the regulation
natural
resources,
security.
[29]
obviously,
those
who
solutions:
But,
had
of railways,
and
the
conservation
provision
of
appointed to these commissions
those
initially raised the
issues
of
social
were
potential
and
the professional, applied science community.
while
these early conservationists set the
scene
for change, their scientific arguments alone could not effect
that change.
would
not
could
be
What was needed was political savvy.
be achieved until the strong
quieted
Moreover,
Congress
management
served
or
overcome;
needed
its
to
that
be
western
implied
convinced
already-articulated
Western development and revenue generation.
principles
to
opposition
compromise.
that
land
objectives
in
The conservation
needed to be presented in a manner that conformed
already-defined
proposed
Success
only
objectives.
New
objectives
if they did not conflict with
could
those
be
already
established.
In the 1890's, the conservation
ideal began to take hold
through the dynamic personality and relentless efforts of its
natural leader and spokesman:
a
forester by training.
Gifford Pinchot.
While educated at Yale,
his practical experience in Germany and France.
back
to
Pinchot was
he gained
He
brought
the United States the forestry skills perfected
21
in
Europe and, after a brief period managing a private forest in
was
Carolina,
North
(forest cultivation),
silviculture
current
that
convinced
control
watershed management and fire
methods could be applied to the public timberlands to prevent
and one that has been the driving force
Pinchot's objective,
was
professional land management efforts ever since,
behind
to
[30]
flood and fire problems there.
the widespread disease,
the public
manage
good of the greatest
greatest
it,
"the
in the long run."
[31]
as he put
lands to achieve,
number
Conservation of resources, he argued, was the "basic material
of mankind." [32] Conservation was
problem
of public land resources to serve the
use
sustained
the Division
use
into the capital.
dip
to
their colleagues
conservation
question
were so convinced
principles
it as the
Forest
that
efficient
never
while
Fernow
and
of the appropriateness
of
[33] Pinchot,
they
referred
to
it
as
"a
of right and wrong."n [34]
Act.
The
Management Act was the first legislative mandate
for
In 1897, Congress
land
described
of Forestry,
of the interest from public land resources
having
nation
Bernard Fernow, Pinchot's predecessor as Chief
for all time.
of
efficient,
the
management
passed
rather
the Forest Management
than
disposition
unmanaged
or
of the Interior
power to
"make such rules and regulations and establish such
services
reservation.
It gave the Secretary
namely,
as will insure the objects of [the] reservations,
regulate
therein
their occupancy
from
and use and to preserve
destruction." [35]
22
to
the forests
Future reserves
could
be
established
"to
reservation,
improve and protect the forest
or
for
the
purpose
of
within
securing
the
favorable
conditions of water flows, and to furnish a continuous supply
of
timber
United
for the use and necessities
States."
[36]
of
the
The Act was a tremendous victory
for
Pinchot and his colleagues
no
obstacle
who argued
to the introduction
of
citizens
that "legally
of the most
there
practical
is
and
approved ways of handling forest lands." [37]
But,
the
of
1898
the wheels of government turn slowly.
Passage of
Forest Management Act in 1897 and Pinchot becoming Chief
the General
Land Office's
(GLO) Division
did not pave the way for the widespread
of
and
Forestry
unhindered
application of professional forestry to the public lands.
took
It
time for Pinchot to overcome the obstacles posed by the
already existing GLO and its staff of law clerks "trained
the
in
in
legal details of land disposal but thoroughly unfamiliar
with forestry or the west":
Trained as lawyers, they had no large views of the
possibilities
of forest management,
but adhered
strictly
to narrow interpretations of
law
and
emphasized formal procedures rather than results. The
custom of political appointments to the General Land
Office
hampered
the selection
of
technicians.
Politicians
considered
the position
of
forest
supervisor as a patronage plum, for example, and
bitterly criticized the General Land Office when it
selected trained men for the post. [38]
But, Pinchot persevered.
He mobilized professional foresters
and forestry associations behind him,
private sector.
programs
reserves.
including those in the
Pinchot immediately instituted fire control
and the selective cutting of timber in
His
successes
encouraged large
23
the
forest
private
timber
corporations that had much to gain by a managed and sustained
timber industry and he thereby gained their backing.
first
time,
the
Division
of
Forestry
was
For the
staffed
by
professional foresters. [39]
Pinchot found a natural ally in Theodore Roosevelt whose
efforts
had
helped
preserve
Yellowstone
National
Park.
Roosevelt, one historian wrote, joined those political causes
in
which
he
found
"personal
Roosevelt was a conservationist,
historic
strides
during
insignificant degree,
first
addressed
[40]
administration.
To
no
this progress was due to Pinchot's and
(This, of course, was neither
nor the last occasion when a social
because
Because
the conservation ideal made
his
Roosevelt's close friendship.
the
relevance."
of
problem
the personal interest or
need
was
of
a
powerful political actor. [41]) Pinchot's diaries recount the
many
occasions when he and Roosevelt discussed
and strategized its implementation.
account
eluded
was
when he,
Roosevelt and the
Pinchot's favorite
French
Ambassador
secret service men and "stripped to the buff"
swimming
in Washington's
Pinchot
these
[42]
conservation
and
to
Rock Creek Park. [43]
Roosevelt
were fortunate to
be
pressing
concerns at a time when social reform was rampant
Congress
was
efficiency."
receptive
Roosevelt
go
to
saw
the
widespread
"gospel
much to be gained by
the
and
of
new
theories of public administration that were developing at the
time.
He believed that the executive office was the "direct
representative
of the people at large" and therefore it
24
was
the
executive's
responsibility
Congress
toward
country."
[44]
of
that resource policy best
for
the
he
detail
realized
efficient
that "to make
and essentially
and
entire
federal
it so is a
executive
in
its
probably no legislative body, no matter how wise and
could
able,
undertake
[45]
success."
divorced
One
public
But,
complex
nature;
only
the
Roosevelt sought a more
administration.
task
"to guide
from
it
with
the political
dealings
of Congress
the
to be
planning.
land
has attributed Roosevelt with
historian
of
decisionmaking
He perceived administrative
to achieve efficient and rational
way
prospect
reasonable
inverting
the
traditional relationship between the executive and Congress:
Now the subdivisions of the executive had assumed
task of studying and resolving the big problems.
President was expected to give priorities,
Congressional
attention
on an issue at
the
The
then focus
a
time;
in
other words, provide and direct a rather precise
legislative program.
The President initiated, and
Congress, if it wished, could veto. [46]
Pinchot
was fortunate in Roosevelt's dedication to
conservation
movement.
legislation
reality.
million
acres.
establishing
by
[47]
forest
Roosevelt administration
148
into
million acres
In fact,
to
Roosevelt's
Roosevelt
authorization
had
no choice but
194.5
sign
much
in
law
future
all
to
a
forest
enthusiasm
law because it was attached to a
appropriations bill.
the
total
for
or
became
reserves caused Congress to pass a
Congressional
reservations.
measure
the
increased
requiring
could suggest policies
and Roosevelt would see to it that it
During
reserves
Pinchot
the
this
needed
However, in the few hours before he was
25
forced to sign it, Roosevelt established sixteen new national
forests.
[48]
But, the Pinchot-Roosevelt alliance alone could not have
imposed
the
dramatic change then occurring with respect
the public lands.
to
Much of their initial success came from a
willingness to accomodate western interests and thereby avoid
an undoubtedly insurmountable obstacle to forest
Some of the proposed regulation,
desired
by
western
by that time,
range and grazing
management.
was actually
interests.
[49]
By
taking public timber off the market, except where needed, the
forest
reserves
timber
market.
permits
the
stockmen
helped
[50]
stabilize
a
severely
By systematically
fluctuating
allocating
forest reserve range was better maintained
were no longer competing with one another
same
foraging
land.
[51]
Other
grazing
areas
factors
at the expense of the quality
contributed
to
western
and
for
the
of
the
acquiescence.
"Primary consideration" in all Forest Service regulations was
given to accommodating local interests.
still allowed to cut timber.
the
[52]
Settlers
were
The Forest Service "Use Book",
142 page precursor to today's more than 20 volume Forest
Service Manual,
stated at the outset the basic tenet of
the
Forest Service:
Forest
reserves
are for the purpose of preserving
a
perpetual supply of timber for home
industries,
preventing destruction of the forest cover which
regulates the flow of streams, and protecting local
residents from unfair competition in the use of forest
and range.
They are patrolled and protected, at
Government expense, for the benefit of the Community
26
and home builder.
Moreover,
Book"
the
[53]
first eight regulations detailed in this "Use
regarded "preferential treatment" for local
obtaining
economic
free
use permits and generally
interests
Regulations
emphasized
in
regarding
use of the
grazing
the
their
resources.
[54]
national
the dual intent to "contribute to the
of the livestock
industry"
and "protect
in
protecting
forest
in
users
forests
well-being
the interests
of
the
settler against outside competition." [55]
With the national forest essentially reserved until such
time
that
its
timber
national demands,
would be needed
to
meet
local
and
the Forest Service turned its attention to
assisting private companies in the management of their lands.
Forest
Service
staff were
available,
at
private
company
expense, to develop long term timber management plans for the
sustained
yield
of
timber
from
private
Other
forests.
cooperative programs included tree plantings, fire prevention
and fighting
and disease
and pest control.
[56]
One of Pinchot's major efforts during this time, and one
immediately
was
to
adopted
obtain
responsibilities
by Roosevelt when he became
the
transfer
from the Department
Department of Agriculture.
logically
they
were
sciences.
[the]
of
all
land
President,
ma nagement
of the Interior
to
Pinchot argued that these
belonged to the Department of Agriculture
scientific in nature and based in the
the
tasks
because
biological
Moreover, he argued that "no one could cut through
entrenched
inefficiencies"
27
of
the
GLO
that
was
"hopelessly
legalistic
involved
routine,
believed
that
overcome
the
in a maze of
and
political
personal
appointments,
favoritism."
[57]
a new agency would be the only way
inefficiencies
professionally
of
the
past
manage the public lands.
to
and
He
fully
begin
to
He argued that all
management responsibilities should be transferred because the
resources
themselves were interrelated and
administration
would
Furthermore,
it
would
"interdepartmental
resource
own
users
be the rational,
overcome
thus
efficient
the
in
1905.
their
Congress approved the transfer of
of Indian Affairs to
That Act marked
the
by
competing
played one agency against another for
Office
Agriculture
caused
when
forest reserves but not the Geological Survey,
or
approach.
problems
conflicts which resulted
advantage." [58]
Office
integrated
General
the
Land
Department
of
the birth of the
US
Forest Service.
Progressive
with
conservation
was not
pursued
universally
the same zeal and enthusiasm exercised by Roosevelt and
Pinchot.
mildly
Roosevelt's successor, President William Taft, only
supported
and sometimes opposed
Pinchot's
efforts.
After the tremendous strides during the Roosevelt administration, progress in further institutionalizing the professional
conservation
come.
ideal
came slowly.
But,
By that time conservation was,
it nonetheless
did
as one historian
put
it, "a common element of political rhetoric." [59]
Taft
reportedly lamented after his election
that,
was in favor of conservation, whatever it was. [60]
28
President
everyone
Preserving the Paradigm
The
turn
conservation
movement was able to succeed
the century for three reasons.
of
existed.
There
was
widespread
fraud
resources contained in the public domain
First,
and
at
a
problem
abuse
and,
the
of
moreover,
the
no
means within established administrative institutions by which
Second, an
the federal government could control this abuse.
organized
and
solution
the
profession provided
a
Conservationists
had
problem.
rational
a
U.S.
President enthusiastically supporting their efforts and
they
had
to
influential
scientific documentation for their claims.
Third,
political and social climate at the time promoted
and
management
in government,
the
efficiency
precisely what the
forestry
profession was advocating.
But, while these factors explain why the ideal succeeded
in 1900, they do not explain why it prevails in 1980. Several
factors
have
conservation
derives
To
paradigm.
from
colleagues
a
large
extent
of
this
the type of institution that Pinchot
success
and
his
of
the
able to set into place at the turn
were
the
The Forest Service manages the national forests in
century.
a
contributed to the continuing success
highly
flexible
environment.
and
discretionary
administrative
Pinchot argued for this flexibility in order to
maintain "the high standard of fidelity, honesty and ability"
needed
to
manage
Forest
Service
the forests as well as to
officials
to function
natural conditions. [61]
29
under
better
enable
such
diverse
Additionally,
this
institutional
behavior on the part of Forest
strategic
throughout
this
century.
While
came
strength
Service
little
from
officials
legislation
was
enacted following the establishment of the national
actually
forests in 1905, the agency's powers continued to expand.
As
one Forest Service law officer later remarked:
The vitalizing of this power through vigorous use was
the chief means whereby the Forest Service achieved
results in matters of grazing, water power, the
prevention of land frauds, etc. Comparatively little
conservation legislation was enacted during these
years.
Progress came not through getting new powers
...but by using those we had. [62]
Part
these results came through
of
legislative
and then receiving favorable rulings when taken
mandates
court.
stretching
to
Forest historian Harold Steen observed:
The Forest Service strategists understood well what
many refuse to accept, that courts by their decisions
By picking and choosing cases -- and
do make law.
-were supporters of conservation
judges
who
...[they] were able to build up an impressive corpus
to
hard-won
common
law to give substance
of
legislative battles. [63]
Moreover, in contrast to today, judges at the time frequently
preferred
not to rule in matters that they deemed best
By not ruling,
to administrative expertise.
the
Forest
Service's action and set
left
they validated
precedent
for
future
agency decisions. [64]
The institution alone, however, does not account for the
paradigm's strength today.
The paradigm is not only a model
of action premised in conservation ideals, it also represents
the culture of the public forestry profession.
the
profession
itself has reinforced it
30
As a result,
through
standard-
setting
for
through
the esprit d'corps of the agency.
century
there has been a revolving door between
Service,
university level forestry education as well
faculty
in
forestry schools,
professional forestry associations.
become
entrenched
Throughout
the
as
this
Forest
and leaders in
the
Hence, the paradigm has
in the profession's code
of
ethics
and
standards of behavior and in Forest Service guidelines.
Additionally,
the
professional
expertise
decisionmaking persists because it was not really
model
of
challenged
until recently.
Overall, the decades following establishment
of
Service were a rather sleepy
the
Forest
agency.
time
for
the
It managed the forests as the early laws allowed and
waited for the day when the nation would need timber from the
public
forests.
This does not mean that the Forest Service
was without threats during this period.
There were
several
efforts to move the agency from the Department of Agriculture
to
the
always
that
Department of the Interior.
opposed
by foresters and
forestry.
Congress
or
pressing
issues.
reinforced
calling
These
efforts
the
To a large
failed,
fearing
non-
however,
pulled
extent,
when
to
these
paradigm as it increased tensions and
between the foresters in USDA and land
[66]
were
professional,
the President's attention was
[65]
proposals
conservationists,
it would bring about the demise of
political
DOI.
These
more
threats
name-
managers
in
It helped sustain the esprit d'corps that Pinchot
believed was so critical to good forestry by pulling together
Forest Service staff as a team.
31
Without this esprit d'corps
no guarantee that loyalty to the agency's
there
was
would
prevail
in the field;
the temptations
to
ideals
to
succumb
other pressures would be too great.
The greatest challenge to the paradigm has come recently
as Congress enacted several preservationist statutes.
statutes
discussed in detail in Chapter
are
implicitly
questionned
the
paradigm
4.]
[These
Congress
supplementing
by
conservation
objectives with preservation and non-commercial
objectives.
But, while seemingly undermining the paradigm by
legitimizing and empowering preservation ideals,
Congress at
the same time reinforced the paradigm by delegating extensive
administrative
powers to the scientific experts deemed
best
able to make these tough decisions.
The Grazing
Lands
These dramatic changes in national forest management and
concommitant success of foresters in
the
institutionalizing
their professional land management paradigm were not mirrored
by
land
of
practices
Land managers
domain.
a
management
for the rest
in the General
of
the
public
Land Office adhered
to
different philosophy regarding the proper use and disposal
public lands.
land
users
Unlike the USFS,
themselves
were
the
they believed that
best
able
to
the
dictate
appropriate management measures.
The
forests
fate of the public
domain apart from
the
had been debated time and again in Congress
national
and
the
courts since before the turn of the century. It was not until
32
the Taylor Grazing
in 1934 that the long period of
Act passed
nonmanagement and mismanagement of these lands was brought to
a close.
for
[67]
in the open range.
grazing
Grazing
The Act established
Service
in
Farrington Carpenter,
Pinchot,
the
grazing
Placed
Department
districts
and fees
new
in charge of the
of
the
was
Interior
a Harvard Law School graduate.
Unlike
Carpenter thought the issues to be addressed by the
Grazing Service were best left to the stockmen themselves. He
believed that federal officials who knew little about grazing
and
had
that
decisions
advisory
recommendations
hiring
affected grazing.
committees
"practical
committee
comprised
He
not
established
make
district
stockmen
of local
to
make
Carpenter regarded
to the Grazing Service.
range experience"
the
should
visited the Western range
never
to be the major qualification
district graziers who would
recommendations.
As
act
a result,
upon
in
advisory
Grazing
Service
field staff were dominated by ranchers and their sons, not by
professionals as in the Forest Service.
became
known
Carpenter's
as "home rule on the range."
[68]
policy
Because
of
Carpenter's
loose
power
and
independence
of these advisory committees strengthened
over
the
years.
determined
control,
the
inferred
early
1950s
that the allowable AUM (animal unit month)
level
When
a
BLM
range survey in
in one district should be decreased,
the
the advisory
committee
for that area was outraged:
the
bothers us the most
is that
The thing
which
Manager] made the cut against the advice of
[District
Board.
and contrary
to the wishes of the Advisory
33
These
men are all experienced stockmen -- all are
operators -- they know the range capabilities -- they
are interested, even more than the Manager, in a long
time operation.
Certainly it was never the intention
of Congress that this one bureaucrat should override
the considered judgment of the cumulated experience of
the members of the Advisory Board.
The Manager and
his paid personnel should furnish the information and
the board should fix the policy.
If this is not the theory, it should be.
(emphasis added) [69]
Carpenter
was not the only obstacle to range management
by professionally trained land managers.
management
after
profession
World
develop
War
did not become
II,
the professional advocates,
the
range
well-organized
until
the Grazing Service was not
rapidly as was the Forest Service.
until
Because the
able
to
staff and practices
as
As a result,
it was
1950s that professional range managers
not
began
to
infiltrate the organization. [70]
In
1946,
Service.
dramatic
President
change
Truman's
occurred
in
the
Grazing
Reorganization Plan Number
2
merged the GLO and Grazing Service to form the Bureau of Land
Management (BLM).
first
Director.
"worse
than
believed
land
a
Marion Clawson was appointed as the BLM's
[71]
In the stockmen's eyes,
conservationist;
he was
an
Clawson
was
economist
who
the BLM could and should operate as a
management agency." [72]
He was able to transform
BLM during his seven year tenure (1946-53) to a
agency
be
[73]
seen
By the early 1960's,
in the increasingly
throughout the agency's hierarchy.
34
the
professional
staffed with trained grazing managers and
specialists.
could
professional
irrigation
Clawson's influence
professional
Still,
influence
the influence of
local
interests
(particularly in setting grazing
allocations) as opposed to professional
fees
judgment,
and
continues
to distinguish Forest Service from BLM land management. [74]
A New Era In Public
After
World
Land Management
War II the role of the US
also changed dramatically.
established
in 1905 to manage
the forest reserves,
essentially
private
companies so as not to depress
"90%
timber
its role
It managed the national
forests
as
Service
Ever since the Forest Service was
had been primarily "custodial." [75]
activities
Forest
as reserves and sold little
timber
timber
prices.
to
Its
during this period have frequently been described
fire fighting."
supplies
[76]
increased
But,
markedly
the demand
during
for
the
public
economic
expansion following the war. The demand was further increased
because
private
resources
companies
had
failed
for a sustained yield and,
to
as a
manage
result,
their
private
inventories were decreasing. [77]
With
the
postwar economy booming,
private
viewed the public land management agencies to be
needed
growth.
Efforts
were
made during
the
enterprise
obstructing
Eisenhower
administration to shift responsibility for the public
domain
to private interests:
...stockmen announced their goal of
transferring
public rangelands to private ownership, while the
forest
industry strongly advocated a prohibition
against additions to the national forests and even a
few schemes to transfer some federal timberlands into
private ownership. [78]
But,
critically,
these
efforts were countered by those
35
of
environmental
visions
and
preservation
groups
that
had
broader
of the uses to which national forest lands should be
dedicated:
The Forest Service had been one of the darlings of the
preservation-oriented conservationists because of its
criticisms of private timber companies during the
When
decades of private timber regulation conflicts.
the service indicated its plans to open the national
forests to increased logging by those same companies,
conservationists [sic] turned on the agency, opposing
increased
and
advocating
its
timber
policies
recreational programs and preservation of wild and
primitive areas. [79]
attempted
Congress
many
different
occasions
to
this growing conflict between different users of the
address
same
on
public
lands.
It passed legislation
clarifying
its
intent regarding what were legitimate land uses and how these
lands should be managed.
legislative
scope,
process,
giving
agencies.
only
But,
acts were necessarily broad
these
general
management
The
but
policy
land
implementation in site specific cases is no simple task.
programs
broad
to
in
to
management
from
guidance
the
statements
land
Moving
of
as is characteristic
agencies now must not only try
that satisfy the objectives of one
must,
in
so doing,
develop
particular
accommodate numerous other
objectives
from
often
Consistent
with
the paradigm,
provides the greatest,
to
conflicting
legislative
policy
mandates.
they do so in a manner
sustainable return,
act
considering
that
the
expanded agenda of legitimate uses.
Throughout
fought
against
administrative
this
time,
policies
the
land
or programs
management
that
(translated
discretion
36
would
to
agencies
diminish
efficient,
professional
first
The
and allow single uses
planning)
major
battle
Wilderness Act of 1964.
to
professional
the
Service.
in
during
this
to
time
dominate.
was
over
This Act was viewed as a threat
80]
by
standards established
the
Forest
It was not that the Forest Service did not believe
it had administratively designated
Indeed,
wilderness.
But,
several wilderness and primitive areas over the years.
the foresters believed in wilderness on their terms,
not interfere with the efficient use
would
valuable
timber
resources.
This
was
of
a
though,
from
areas
would
the
take
when it
commercially
different
very
conception than that of the preservationists.
Act,
the
The Wilderness
these
the authority to designate
Forest Service and
give
it
to
Congress.
Congress would undoubtedly succumb to political pressures and
be
unable
be lost.
While
also
make the
professionally
correct
decisions.
the gains made towards efficient and rational planning
Thus,
would
to
fighting the Wilderness Act,
advocated
acknowledge
should
81]
the
a
multiple-use
mandate,
Service
the Forest
one
many uses for which national
that
would
forest
lands
be managed and thus free the agency from the
demands
of commercial interests:
an
act
has frequently been criticized as
The
abdication of Congressional responsibility over the
national forests because it is fairly vague and allows
the service to make discretionary judgments among
competing uses (for example, "...with consideration
being given to the relative values of the various
It should really be viewed in the
resources... ).
context of the 1950s -- as a defense against extreme
commodity
user demands
37
and as a codification
of
the
Service's historic conservation mission to promote, as
Pinchot
put
it, "the greatest
number over the long run." [82]
good of the
greatest
With the Multiple-Use/Sustained-Yield
Act
hand,
its opposition
the
Forest
Wilderness Act,
similarly
1976.
lightened
to
in
the
which then passed four years later.
The BLM
fought for a Multiple-Use mandate that it
finally
the Federal Land Policy and Management
in
obtained
Service
[83] comfortably
Act
of
[84]
The Wilderness Act was but the first legislative mandate
to
remove
some Forest Service discretion over the
which the national forests would be put.
Rivers
Act,
designate
too,
rivers
Environmental
gave
Congress
within
the
this system.
Policy Act [86],
uses
The Wild and Scenic
final
authority
[85]
The
created
to
National
Endangered Species Act
and National Forest Management Act [88],
to
[87]
additional
steps in already established administrative processes and, in
so
doing,
provided
access
questioning decisions made.
standing
groups
to
that
involvement.
management
users.
for
More importantly, they each gave
before were unable to obtain
[This consequence,
land
agencies
judgment
professional
had
means
interest
"affected
party"
critical to the public land
is discussed more
thoroughly
in
Gradually, the administrative discretion enjoyed
public
power
and
appeal and sue to many non-commercial
problem today,
Chapter 3.]
by
for input into
become
And,
to
make
began to erode.
decisions
By the late
fairly well distributed
more importantly,
38
based
among
upon
1970's,
the
many
this power was consistently
being exercised to undermine administrative decisions.
"shared power" has become "shared impotence."
Professional
land
managers
public land management,
This
89]
are now in a
new
era
one in which the conservation
of
ideal
and hence the management paradigm are no longer sufficient to
maintain
their discretion.
As new objectives -- objectives
contrary to the conservation ideal -- are being legislatively
mandated, the paradigm is falling short.
land
managers in how to make decisions
uses
such as wilderness preservation,
and
recreation
It is not directing
when
non-commercial
wildlife
are given the same status
protection,
as the
traditional
commercial
forestry
scientific
management paradigm fails because it is
on use.
and
mineral
uses.
The
professional
premised
Professional judgment reflects conservation values,
not non-commercial and preservation values.
managers
continue
decisionmaking
to
processes
apply
their
designed
And, while land
long-established
to
achieve
Pinchot's
"greatest good of the greatest number in the long run," their
efforts are unsuccessful.
There
is
seldom
agreement on
represents this "greatest good."
what
outcome
actually
For example, an area strip-
mined for coal is no longer available for recreation, timber,
scenic
amenities or wildlife habitat.
preserved
longer
Which
as wilderness
Similarly,
or set aside as a national
an
area
park is no
available for most commercial development activities.
use or combination
of uses provides
the ideal "greatest
good" is not obvious and can be argued differently
39
depending
upon one's perspective.
Regardless,
the
conservation ideal remains today to be
the objective sought by the public land
of
the
Forest
Service
agencies.
Analyses
in 1960 and again in 1980,
made
the
same observations about the Forest Service dedication to
its
mission: obtaining "the greatest good for the greatest number
in
the long run."
In 1960,
Herbert Kaufman commented
that
the competing demands confronting the US Forest Service "have
given
forest officers a sense of engagement in a crusade
behalf
of
the public interest.
Their duties are
from routine forest management to safeguarding the
on
elevated
economic,
and
perhaps even the military security of the nation ....They
are
placed
[90]
In
squarely in the tradition of
1980,
consistency
Paul
with
Culhane
which
Gifford
commented
ranger
on
"the
interviewees
'multiple-use'
and
greatest
in the long run' as the guiding
their
number
work....and
tenacious
helps
commitment
conservationism
advisory
orientation
of
'the
explain
to
the
greatest
the
too.
good
the
of
Culhane
wrote
indistinguishable
respect:
that
"the
BLM
Service's
progressive
15-year
has
as professionally trained resource
with
professional
battle
become
from the [Forest] Service in one
40
in
The same principles
increasingly
agency led to its
the
principles
multiple-use legislation, finally acquired in 1976.
Paul
of
While much power still rests
committees,
the
amazing
mentioned
Forest
principles
and multiple-use." [91]
now guide the BLM,
local
Pinchot's
Pinchot."
for
In 1980,
almost
critical
managers,
BLM
officers
have
a
strong
commitment to
the
principles
of
multiple-use management and progressive conservation." [92]
The Case of Oil and Gas and the National Forests
The phrase "public land management" is all-encompassing.
Under
its
timber
rubric falls watershed and
sales,
mineral
recreation provision,
obvious.
To
study
analysis
would
be
Instead,
a single,
leasing
the
leasing,
wildlife
wilderness
preservation,
and range management,
to name but the
each issue area in the context of
both
time-consuming
and
this
unnecessary.
representative issue area -- oil and gas
and permitting -- is analyzed in order to understand
problem currently posed by public land
thereby
management,
management,
how the administrative decisionmaking process
and
might
be reformed.
The
process
under which decisions are
governing
where
and
occur
on public lands was established in 1920 as a result of
the
how oil and gas exploration and
made
efforts
of progressive
development
conservationists.
Like
may
other
public land policies at that time, the Mineral Leasing Act of
1920
[93] was a response to undesirable mineral
development
practices and was intended to improve conditions by regaining
federal
programs
then
control.
developed
The
oil and gas leasing
and
by this Act were meant to
pervasive fraud,
wasteful
production
monopoly control over these resources.
permitting
overcome
the
practices,
and
The objective of this
new policy was to make energy production on public lands more
41
orderly
The
and efficient by controlling the rate of production.
appropriate
decisionmakers
were
deemed
to
be
the
professionals then staffing land management agencies. [94]
When
the
Congress
established
resources
leased
Mineral
Leasing
a
contained
was
passed
process by which the
beneath
and extracted.
Act
in
oil
the public lands
and
were
to
For more than 50 years this
did precisely that with very little problem.
1920,
gas
be
process
But,
as with
other public land decisions, the political environment within
which oil and gas exploration and development
occurs
must
has
be
changed since the 1920's.
considered
conflicting,
in
natural
concert
resource
with
decisionmaking
Now these
many
decisions
other,
objectives.
Decisions
previously would have taken a month or two under the
process
are
now
previously
would
Management
or
applicant,
now
taking
have
the
to
involved
make.
Congress,
the courts,
citizens
and
the
Bureau
and
Secretary
a
President.
leasing
of
But,
that
of
Land
single
the
numerous interest groups,
the
that
Decisions
only the
US Forest Service
involve
even
years
often
oil
lease
Interior,
individual
and
gas
decisionmaking continues to be guided by the 1920 Act in
the
context
the
of
the land management paradigm devised during
progressive era of conservation.
decisions
regarding
And,
oil and gas are
as with other issues,
frequently
unable
to
withstand the attacks levelled against them.
While
the mineral leasing laws apply equally to BLM and
National Forest lands,
this study concentrates on US
42
Forest
Service
that
decisionmaking
the
intense.
used
because it is over national
clash
between competing resource
There
was a time when the national
exclusively for timber,
almost
forests
users
is
most
forests
were
watershed
protection,
wildlife management, agriculture, grazing and recreation.
fact,
extensive
the
seldom
oil
mentions
Suddenly,
though,
in
literature
and
gas
on the
or
Forest
US
other
Service
[95]
minerals.
the late 1970's oil and
In
gas
leasing
became classified as "one of the most sensitive concerns that
Forest: Service deals with."
the
the
that
New
[96]
York Times describes
nasty...no matter which side wins,
be
irrational."
Forest
are
up
"we
But,
court."
National
Audubon
prefer
controversy
"complicated,
It is a controversy
whichever
[98]
even
the outcome is likely
that leads
to see just how bloody we get as a
watching
in
as
a
a
Supervisor to comment that "a lot of
Service
this thing.
[97]
It is
US
people
result
of
way we go, I'm afraid we'll end
It is a
controversy
that
leads
Society's vice-president to proclaim
to work together
to
in
harmony...but,
if
the
that
war
is
forced upon us we will fight back!" [99] Despite repeated and
varied
attempts
by
the
USFS
to
quell
the
controversy
generated by oil and gas decisions, decisionmaking remains at
an impasse.
Why the change?
Why is the process established
by the Mineral Leasing Act no longer able to yield
that
past?
are accepted
and implemented
decisions
intact as they were
in the
Simple Explanations But No Simple Solutions
There
gas
are many explanations offered for why the oil and
controversy
industry places
exists
and
persists.
The
the blame on environmentalists
up" public
regulation
gas
as well as
on
few at the
lands for the select
of the general and needy public.
expense
and
It calls environmentalists "elitists"
government regulation.
intent on "locking
oil
[100]
Government
is chastized for placing obstacles in the way
of
needed energy development.
oil
The
leasing
process
development
by
and gas industry feels "double-crossed"
on
that,
the
one
hand,
domestic energy resources
of
encourages
while,
with
a
the
the
other hand, places "one hurdle after another" before them and
thus
limits the exploration and development activities
can occur.
no
The industry believes that "federal leasing means
leasing."
[101]
Critics refer to a
"regulatory
where "permitting and leasing delays...have held up
as
much
as
5
"environmental
areas,
years."
rules
wilderness
[102]
They
[that] stifled
studies
are
[that] discouraged
swamp"
drilling
frustrated
development
in
[that] discouraged activity
threatened to lock up millions of acres,
areas."
that
and leasing
exploration in some of the best
with
many
and
delays
onshore
[103]
Environmental groups echo industry displeasure with
the
administrative decisionmaking process. They criticize leasing
decisions
that
threaten
established
44
land-uses
and
non-
they are critical of
Moreover,
commercial resource values.
"Never in recent history
how these decisions are being made:
have conservationists felt so frozen out of decisionmaking on
public lands." [104]
Environmentalists, in turn, point their
Industry,
fingers at industry.
by its efforts to develop pristine
confrontation
and
they argue, is forcing this
national
treasured
forest areas.
wilderness
believe
They
has contrived an "energy crisis" to rape
industry
America's
wild
lands.
If
industry
will
develop
the
perceive
Environmentalists
left
untethered,
last
remaining
that
and
they
wild
ruin
argue,
places.
it to be their responsibility
to
help curb this "blind progress." [105]
their
Given
and
process,
thought
would
the
Interior
this
During the Carter Administration it was
the
conflict.
[106]
Under
quickly."
Carter's
leasing
decisions
Secretary
the
Reagan
believes that it has the upper hand.
of Shell Oil Company,
and development of public lands.
the
end
to
of
the
Cecil Andrus found himself in court as a result
vice-president
and
to take action
that deferring the controversial
inaction.
industry
oil
The nature of the problem evades such simple
though.
stifle
formal
environmental groups are both encouraging
impasse.
solutions,
the
the
gas
decisionmaking
Secretary of the Interior and Congress
this
with
and
administrative
industry
dissatisfaction
Administration,
Robert Nanz,
calls for the
He asserts that
opening
"Congress
administration have the power to get all this
[107]
But,
Reagan's Secretary of
45
of
the
done
Interior
James Watt's management objective to "open wilderness
[108]
has likewise landed him in court.
had no better
luck.
[109]
areas"
Congress has
Its rapid action to prohibit
leasing
in
Montana's Bob Marshall Wilderness Area led it to court. [110]
Regardless
benefits
Like
of
who
tries to put the issue to
by the decision made,
the
the outcome is
formal administrative process,
influencing
decisionmaking
rest
seem
or
who
predictable.
these avenues
unable
to
for
resolve
the
pervasive conflict and thereby make viable decisions.
Administrative Decisionmaking At An Impasse
That
oil and gas exploration
and development
generate conflict has become an undeniable fact.
though
the
this conflict is acknowledged and
administrative
provide
direction
Consequently,
fulfill
how
to
were
made
even
anticipated,
even
is
and
unable
resolve
to
it.
land managers are unsure about how to
and development
at
But,
process
manage
responsibilities
confused,
decisions
on
federal
their
exploration
become
decisionmaking
decisions
in
making
decisions.
best.
For
oil
and
Decisionmaking
example,
in three different US
contrast
Forest
gas
has
how
Service
regions during 1981:
In
Capitan
New
Mexico,
Wilderness
Southwestern
Region
insignificant
one,
therefore
lease applications were filed for
area.
The
Regional
Forester
viewed the leasing decision
involving
no environmental
requiring no public notification or
46
to
in
be
impact
the
the
an
and
environmental
assessment.
[111]
The
leases
were
issued.
But,
when
representatives of the Sierra Club discovered that the leases
had
been
issued,
organization
decision.
they were
immediately
outraged.
went
The
environmental
to Congress to
protest
the
Their efforts resulted in a bill being introduced
in Congress to withdraw all wilderness lands from oil and gas
leasing.
The Sierra Club additionally filed suit against the
US Forest
Service,
Bureau of Land Management
and Secretary
of
the Interior to revoke these leases. [112]
In
Montana,
permit
lease
applications
applications
were
filed
and
for
seismic
the
Bob
testing
Marshall
Wilderness Area. The Regional Forester in the Northern Region
viewed
the decision
leases
and permits.
Foundation,
an
Service
overturn
to
to be so significant
that he denied
[113] When the Mountain
industry interest group,
this
decision,
States
the
Legal
sued the US Forest
Congress
immediately
invoked an emergency provision of the Federal Land Policy and
Management
Act of 1976 to withdraw these lands from oil
gas exploration.
The Mountain States Legal Foundation
and
then
filed suit against the Congressional committee that made this
decision.
[114]
In Wyoming,
took
what
he
decisionmaking.
the Rocky Mountain Region Regional Forester
viewed
In
to be a
response
Washakie Wilderness Area,
more
balanced
approach
to lease applications
an environmental impact
in
to
the
statement
was developed and the conclusion reached that 87% of the area
should not be leased while 13% could be leased. This balanced
47
rather than pleasing all sides,
decision,
and
groups
environmental
administrative
has both industry
preparing
and
dissatisfied
appeals and lawsuits to overturn the decision
once finalized. [115]
no matter how the decision was perceived
each case,
In
(as extremely significant or inconsequential),
and
gas
industry)
(no
completed
(environmentalists
from the decision
would benefit
and no matter
to a
assessment
what type of
full
statement),
the outcome was the same:
the
was carried
debate
no matter who
or the oil
analysis
impact
environmental
conflict resulted and
on to the courts,
or
Congress
administrative
appeals process for further review.
the
was able to accommodate the concerns of
decisions
Hence,
group to their satisfaction.
opposition
rather than acceptance and
was
the
None of
each
each decision prompted
support.
Each
case
involved considerable expense to all parties involved.
Conclusion
Conflict
in
and of itself
is not inherently
bad.
In
fact, sometimes it is good: it keeps federal officials alert,
helps define issues,
decisionmaking,
and
[115]
case
promotes checks and balances in
creative solutions to
encourages
agency
problems,
ensures that the many interests at stake will be
heard.
per se, that is of concern
in the
It is not conflict,
of oil and gas or other public
outcome:
the
inability
of
land issues.
administrative
It is the
decisionmaking
processes to resolve the inevitable conflicts and hence
48
make
decisions that are viable.
A process that is not decisive is
a process ill-suited to the problem it is meant to address.
Before
new
policies or programs are generated
or
new
charges levelled, the problem currently encountered in making
public
land
understood.
management
In
the
decisions
must
context of oil and gas,
nature of the problem posed by public land
are
What
explored
and
what
the
can
What
process?
be done to improve the decisionmaking process
the now inevitable and costly
understanding
the
is
management?
the consequences of the current decisionmaking
overcome
can
be
conflict?
the problem currently posed by
public
land
management paradigm
and
Only
by
decisionmaking
be
updated
and
administrative decisionmaking processes revised accordingly.
The next four chapters analyze the policy problem
by
public
land management in the 1980's.
They
posed
place
one
issue area -- oil and gas exploration -- under the microscope
to
determine why the conflict cannot be resolved by
administrative
this failure.
gas
processes
and what the consequences
current
are
of
Chapter 2 first describes the physical oil and
exploration
and development process.
What
does
this
process involve and thus what is at stake in these decisions?
What
mitigation
measures
environmental impacts?
process
can
be
used
to
minimize
It then describes the decisionmaking
established by the Mineral Leasing Act of 1920
that
is followed by public land managers in making these decisions
today.
Chapter
3
analyzes
the land
49
management
paradigm
in
practice
in
the
permitting.
context
a
pathologies
demise:
the
convincing,
process
leasing
and
is
It identifies
contribute
to
the
not sufficiently
it
three
paradigm's
informative
was very successful.
It
fails
when,
discusses
the
public sentiment regarding the appropriate use
of
public
statutes
or
and it is not decisive.
lands in the context
social and political climate.
resource
gas
4 determines why the paradigm now
long,
management
that
it is divisive
Chapter
changing
and
very political process.
critical
so
oil
It explores the political dimensions of what is
undeniably
for
of
of
a
and
changing
It describes several
natural
that have expanded the objectives
to
be
satisfied in land management and why the paradigm is not able
to accommodate
Chapter
them.
5 asks why this mismatch between policy problem
and process persists.
of
other
students
It reviews the findings and arguments
of
public
land
management
identified this problem and proposed solutions.
highlights
pinpoints
USFS
where
efforts
to
remedy
the
who
have
Moreover, it
situation.
these proposed and attempted
reforms
It
have
failed.
Finally, Chapter 6 takes the lessons of Chapters 3-5 and
describes the elements of a process that might address
failings.
and
It
presents eight steps that the Forest
these
Service
Secretary of Agriculture might follow to accommodate the
public
land management
problem
50
of the 1980's.
CHAPTER 1 -- REFERENCES
[1]
P.
Samuel
Conservation
Hays,
Harvard
Efficiency,
Massachusetts,
University
and
the
Gospel
of
Cambridge,
Press,
1959; page 3.
[2]
Ibid.
[3]
Ralph Nader's Study
Daniel Barney, The Last Stand:
Grossman
Forests,
Report on the National
Group
Publishers, New York, 1974; Phillip Foss, Politics and
Seattle,
Press,
Grass,
University of Washington
Jack Shepherd, The Forest Killers,
Washington, 1960;
New York, 1975; and, more
Weybright and Talley,
generally, Grant McConnell, Private Power and American
Democracy, Knopf Inc., New York, 1966; and, Theodore
Lowi, The End of Liberalism, W.W. Norton, New York,
1969;
both as discussed
in Paul Culhane,
Public Lands
for the Future/Johns
Resources
Politics,
University Press, Baltimore, Maryland, 1981.
Hopkins
[4]
Michael Frome, Battle for the Wilderness, Praeger
Charles
Reich,
York,
1974;
New
Publishing,
"Bureaucracy and the Forests," Center for the Study of
Democratic Institutions, Santa Barbara, California,
1962; and, Ashley Schiff, Fire and Water, Harvard
University Press, Cambridge, Massachusetts, 1962.
[6]
U.S.
Department
of
the
Interior,
Land
of
Bureau
Management, Public Land Statistics 1980.
[7]
Ibid., Table 8, pages 10-12.
[8] Marion Clawson, The Bureau of Land Management, Praeger
Publishers, New York, 1971, chapter 1 and pages 26-28;
and, Culhane, op. cit., pages 41-43.
[9]
Clawson,
ibid.,
pages
15-16;
Samuel
P.
Hays,
Conservation and the Gospel of Efficiency, Harvard
University Press, Cambridge, Massachusetts, 1959; and
E. Louise Peffer, The Closing of the Public Domain,
Stanford University Press, Stanford, California, 1951.
[10] Harold K. Steen, The U.S. Forest Service: A History,
The University of Washington Press, Seattle, 1976;
footnote
page 25,
quoting
from 1889 US Department
the Interior Annual Report.
[11]
Ibid.
[12]
Culhane,
op. cit., page 4; and, Hays, ibid., page 27.
[13]
Culhane,
ibid., page 47.
51
of
op. cit., pages 71-72; and, Culhane,
ibid., page
[14]
Clawson,
81.
[15]
Hays, op. cit., pages 49-53.
[16]
Culhane, op. cit., pages 80-81.
[17]
Hays, op. cit., page 53.
[18]
Clawson,
op. cit., page 18 and 69.
[19]
Culhane,
op. cit., page 95.
[20]
Frome, op. cit., page 19.
[21]
Hays, op. cit., page 36.
[22]
Conservation and the Gospel of
Samuel P.
Hays,
Efficiency:
The Progressive Conservation Movement,
Cambridge,
University
Press,
1890--1920, Harvard
Massachusetts, 1959.
[23]
Ibid.,
[24]
Steen, op. cit., page 4.
[25]
Charles A. Beard and Mary R. Beard, The Beards' New
Basic History of the United States, Doubleday and
Company, New York, 1960, Chapter 24: "Social Reformers
Make Headway," pages 368-383.
[26]
Robert
page
H.
2.
Wiebe,
The Search
for Order: 1877-1920,
Hill
and Wang, New York, 1967, page 167.
[27]
Hays, op. cit., page 142; also, on page 123 Hays notes:
"The conservation movement was closely connected with
to
promote
which attempted
organizations
other
Leaders of the Roosevelt administration,
efficiency.
for example, maintained close contact with the four
major engineering societies, the American Society of
Civil Engineers, the American Society of Mechanical
Electrical
the
American Institute of
Engineers,
Mining
Engineers,
and the American Institute of
Engineers. The societies spearheaded the drive for
efficiency."
[28]
Steen, op. cit., Chapters
[29]
Beard, op. cit., page 338.
1-4.
[30] Hays, op. cit., pages 28-29.
[31] Gifford Pinchot,
Breaking New Ground,
52
Harcourt, Brace
New York,
and Co.,
1947; pages 319-326
("The Birth of
Conservation") describes his inspirational ride through
Washington D.C.'s Rock Creek Park during which the
relationship between man and natural resources clearly
jelled in his mind and led to the coining of the phrase
"the greatest good of the greatest number in the long
run."
[32]
Steen, op. cit., page 255.
[33]
Ibid., page 38.
[34]
Wiebe,
[35]
Ibid., page 44.
[36]
Steen, op. cit., page 36.
[37]
Hays, op. cit.,
[38]
Ibid., page 37.
[39]
Ibid., page 46.
[40]
Wiebe,
[41]
op. cit., page 153.
page 44.
op. cit., page 190.
See, for example, Steven Kelman, "Occupational Safety
and Health Administration," in James Q. Wilson, The
Politics of Regulation, Basic Books, New York, 1980.
Kelman describes the personal efforts of an assistant
secretary
one of
passage
in the Department
of Labor and a brother
President Johnson's speechwriters that led
of the Occupational Safety and Health Act
of
to
of
1970.
[42]
Pinchot, op. cit.
[43]
Steen, op. cit., page 70.
[44]
Hays, op. cit., page 134.
[45]
Ibid.
[46]
Wiebe, op. cit., page 193.
Public
[47] Glen O. Robinson, The Forest Service: A Study inHopkins
Future/Johns
the
for
Resources
Land Management,
University Press, Baltimore, 1975, page 9.
[48]
Steen, op. cit.,
[49]
James
Q.
page 100.
Wilson,
"The Politics
in
of
Regulation,"
Social
The
ed.,
McKie,
James
of
6
Chapter
The
D.C.:
Responsibility of Business (Washington,
53
Brookings Institution, 1973), refers to this as the
"self-interest" theory of regulation. He describes the
many different causes of regulation, some of which are
rooted
in a desire by the industry
to be regulated
obtain that regulation in order to,
stabilize or standardize the industry.
for
to
example,
[50]
Steen, op. cit., pages 89-96.
[51)
Ibid., pages 86-89.
(52]
Ibid., pages 78-79.
(53]
Ibid.
(54]
Ibid., page 79.
[55]
Ibid.
[56]
Ibid., Chapters
III, V, and VII.
[57]
Hays, op. cit.,
page 39.
[58]
Ibid., page 72.
[59]
Steen, op. cit., page 96.
[60]
Ibid.
[61]
Ibid., page 50.
(62]
Hays, op. cit.,
[63]
Steen, op. cit., page 89.
[64]
Clarence W. Brizee, "Judicial Review of Forest Service
Land Management Decisions," Journal of Forestry, July
page 44.
1975.
[65]
BLM mismanagement of Alaska lands ended one transfer
proposal; World War II ended another. Steen, op. cit.,
pages 147-152 and 237-245.
[66]
Ibid., pages 237-245.
[67]
The Taylor Grazing Act of 1934;
43 U.S.C. Sec 315.
[68]
Culhane,
[69]
Culhane,
is
48 Stat.
1269 (1934),
op. cit., pages 85 and 104.
page 90;
loosely
defined
also, Clawson note page 37: "An AUM
as the forage required
mature cow for one month."
54
to
feed
a
ibid., page 92.
[70]
Culhane,
[71]
Ibid., page 88.
[72]
Ibid., page 91.
[73]
Ibid., page 91.
[74]
See Culhane generally.
[75]
Ibid., page 50; also, Clawson,
[76]
Steen, op. cit.
[77]
Culhane,
page 11; and, Clawson,
[78]
Culhane,
page 51.
[79]
Ibid., pages
[80]
The
op. cit., pages
19-21.
page 21.
51-52.
Wilderness
Act of 1964;
78 Stat 890,
U.S.C.
16
1131-1136.
the
Praeger
Wilderness,
[81]
Michael Frome, Battle for
Publishing, New York, 1974.
[82]
Culhane,
[83]
The Multiple-Use/Sustained-Yield
215, 16 U.S.C. 528-531.
[84]
The Federal Land Policy and Management
U.S.C. 1702.
[85]
The Wild and Scenic Rivers Act of 1968,
918, 16 U.S.C. 1271.
[86]
The National
[87]
The Endangered
U.S.C. 1361.
[88]
Forest Management
The National
2249, 16 U.S.C.A. (Supp. 1979).
op. cit., page 53.
74
Stat
43
Act of 1976,
82 Stat
9064321.
Policy Act, 42 U.S.C.
Environmental
Species
Act of 1960,
Act of 1973, 87 Stat 884-903,
Act of 1976,
90
16
Stat
[89] This consequence of a broadened environmental agenda is
not unique to the public lands. See, for example, Alan
A.
Altshuler and Robert W. Curry, "The Changing
Environment of Urban Development Policy -- Shared Power
or Shared Impotence?", Urban Law Annual, 1975, pages 341,
for an analysis
of a similar problem
with
respect
to urban transportation development.
[90]
Herbert
Kaufman,
The
Forest
55
Ranger:
A
Study
in
Administrative Behavior, Resources for the Future/Johns
Hopkins University Press, Baltimore, Maryland, 1960;
pages 223-224.
[91]
[92]
Culhane,
op. cit., page 69.
page 105; see also Clawson,
Ibid.,
op. cit., pages 52-
53.
[93]
The Mineral
181.
Leasing Act of 1920, 41 Stat 437, 30 U.S.C.
[94] John Ise, The United States Oil Policy, Yale University
Press, New Haven, Connecticut, 1926; Heather Noble,
"Oil and Gas Leasing on Public
Lands: NEPA Gets Lost in
the Shuffle," Harvard Environmental Law Review, Vol.
6:117, 1982; and, Peffer, op. cit., pages 125-133.
[95]
See, for example, Samuel Dana and Sally Fairfax, Forest
McGraw Hill, New York, second
And Range Policy,
edition, 1980; Michael Frome, The Forest Service,
Praeger, New York, 1974; Glen O. Robinson, The Forest
Service: A Study in Public Land Management, Resources
Press,
University
Future/Johns Hopkins
the
for
Baltimore, 1975; and, Harold K. Steen, The Forest
Service: A History, op. cit. Most reference in these -the most widely referenced books on the Forest Service
If the Mineral Leasing
-- deal with hardrock mining.
Act
most
the
of 1920 is mentioned
attention
National
it is just in
passing.
given to oil and gas issues
Forests
is 2 pages in
the
The
affecting
most
recent
review of public lands issues: Paul Culhane, Public
Lands Politics: Interest Group Influence and the Forest
Service and Bureau of Land Management, Resources for
the Future/Johns Hopkins University Press, 1981.
[96]
U.S.
the
Assistant Secretary of
Crowell,
John
Department of Agriculture, address given to Symposium
on "Public Lands and the Reagan Administration: Access
to America's Natural Resources;" Denver, Colorado,
November
19-20, 1981.
[97] The New York Times, editorial, August 25, 1981.
[98]
The New York Times, "U.S. Faces Key Decision on Leasing
Wilderness for Mineral Exploration," Sunday, August 30,
1981; quote from Randall R. Hall, Shoshone National
Forest Supervisor.
[99]
Brock Evans, executive vice-president, National Audubon
Society, address given to Symposium on "Public Lands
Under the Reagan Administration..." op. cit.
[100]
Al Overton,
American Mining Congress, address given to
56
Lands
on
"Public
Symposium
Administration..." op. cit.
the
Under
Reagan
[101]
H. Edwards, Attorney for ANACONDA, address given to
the
Reagan
Under
Lands
on
"Public
Symposium
op.
cit.
Administration..."
[102]
The Oil and Gas Journal, "Outlook Cloudy for More
Public Land Energy Work," November 10, 1980, page 140.
[103]
Ibid.
[104] William K. Reilly, Executive Director, The Conservation
Foundation, address given to Symposium on "Public Lands
Under the Reagan Administration..." op. cit.
[105]
"Not
Blind
Opposition
to Progress
Opposition
But
to
Motto of The Sierra Club.
Blind Progress;"
[106]
500
Rocky Mountain Oil and Gas Association v. Andrus,
1980);
and, Mountain States
1338 (D. Wyo.
F. Supp.
499 F. Supp. 383 (D. Wyo.
Legal Foundation v. Andrus,
1980).
[107]
"More Access to U.S.
The Oil and Gas Journal,
Land Urged," September 29, 1980, page 58.
[108] U.S.
1981,
from
the Interior,
of
Department
transcript
Service
Broadcasting
Environment."
of
December
program:
Federal
memo dated May
9,
"James
7,
Public
1981
Watt's
[109]
Sierra Club v. Peterson, Civil Action No. C81-1230, US
District Court for the District of Columbia.
[110]
Pacific Legal Foundation v.
982,
[111]
(D. Mont.
James Watt,
529 F.
Supp.
1981).
Personal interview with R. Max Peterson,
Forest Service, October 13, 1982.
Chief,
U.S.
[112] New England Sierran, "Watt Should Have Looked Before He
Leased," May 1982, page 5.
[113]
High Country News, "Move to Guard Bob Marshall Puts
Real Values Before Rhetoric," May 29, 1981, vol. 13,
no. 11, page 14.
[114]
[115]
High Country News,
1981, page 2.
May 29, 1981, page 2, and, June 12,
Oil and Gas Exploration
and Leasing Within
the Washakie
Wilderness, Draft Environmental Impact Statement, US
Shoshone
Region,
Rocky Mountain
Forest Service,
57
National Forest, November 1981; and, personal interview
with R. Max Peterson, Chief, US Forest Service, October
13, 1982.
[116]
In The Functions of Social Conflict, (The Free Press of
Glencoe, 1956) Lewis A. Coser describes the benefits
intra- and
inter-group
derived
from conflict to
relations.
58
2
CHAPTER
THE OIL AND GAS LEASING AND PERMITTING PROCESS
oil and gas exploration and development on
That
lands
is controversial
process
by
which
of the
a function
is partly
it occurs and partly a
public
physical
of
function
administrative process by which decisions are made
the
governing
where and how this exploration and development may occur. The
of
purpose
this
chapter is to provide a
oil and gas exploration
stake
in
these
understanding
decisionmaking
of
process
and hence what
and development
It
decisions.
the
the
for
It describes what is involved in
that follows it.
analysis
context
oil and gas
and
is
at
provides
a
background
leasing
and
permitting
the detailed analysis
that
it
requires.
This chapter presents the decisionmaking
process
on
the following chapters illustrate it in
practice
with
paper;
an
eye
towards where and why the two differ
and
how
reform might be achieved.
The Mineral Leasing Act: A Brief History
The
forest
same
conservation
management
rise to the Mineral
the
was
Act
sentiment
that led
to
national
policies at the turn of the century
Leasing Act of 1920.
[1]
gave
Consequently,
dealt with matters of efficiency in production
little
exploration
concerned
and
with
the
development
resources.
59
on
implications
other
of
valued
and
energy
surface
Originally
under
characteristics
of
the
acknowledged.
development
hardrock
federal
policies
minerals,
petroleum
[2]
other
phosphate,
the
applying
to
oil and gas
nonmetalliferous
the
same
as
disposal
were
In
policy through 1925,
to
waste
of
review
of
his lengthy
John Ise
and
applied
overproduction and
resulted.
unique
potassium, sodium) were
By
extensive
resources
oil
Law,
oil and gas and
minerals (coal, potash,
not
Placer
described
this
mismatch:
The Placer Law provided that any individual might file
a
location
on
20
acres
of
mineral
land,
or
an
association of eight or more persons might file on
eight claims aggregating 160 acres, and by expending a
certain amount each year in "assessment work" and by
finally making a discovery, might secure title to the
land on payment of $2.50 per acre.
The law was not
adapted
to the exploitation
of oil and gas for several
reasons:
in the first place, it gave prospectors no
definite rights until discovery; in the second place,
it
required the performance of assessment
work
regardless
Entry
of the need for oil; in the third place,
provided
for the disposition of tracts too small
efficient
operations,
and so made it necessary
oil operators to use dummy entrymen
enough tracts." [3]
to
under
right
the
placer
laws gave no legal
entryman until after a discovery was made.
the
in
for the
get
large
to
the
because
of
extensive and very obvious development activity involved
oil
conduct
and gas exploration,
operations
ensure that,
to
But,
it
for
in the clandestine manner
if a strike were made,
file the discovery.
spread
prospectors were not
able
to
necessary
to
they would be the first
Rumors of a potential
strike
like wildfire with many "professional" entrymen
converging
on
the same area to hopefully become
60
the
would
then
lucky
first
prospector to strike petroleum and thereby gain rights
to the area's
Because
resources.
of
the waste,
plagued this system,
1909,
the
from
overproduction and
President Taft announced,
emergency
all
[4]
fraud
that
in September
withdrawal of federal petroleum
forms of entry and disposition
until
lands
legislation
could be enacted to promote efficient disposal practices. [5]
Taft's
proclamation
proper
ownership and disposal of these
divided
congress
commenced a ten year debate
during this
about
lands.
period:
Two
First,
the
issues
should
the
federal petroleum lands be transfered to the states or should
they
be
retained
exploration
surface
be
in
federal
regulated
by
ownership?
a leasing
Second,
system
that
resources under federal management or by a
program?
[6] This ten year delay in obtaining
should
kept
disposal
legislation,
during which the withdrawn lands remained inaccessible, would
likely
lands
not have been permitted had overproduction on private
not diminished any need or desire at the time to
the public
As
lands to production.
open
[7]
with the earlier land management statutes,
enacting
the mineral leasing laws could not have been achieved without
first accommodating the powerful western interests.
provided
37.5%
Additionally,
of
as
lease
with
royalties
the
timber
to
the
The
states.
act
[8]
management
practices
advocated twenty years earlier by Gifford Pinchot,
efficient
oil
and
desired
gas
exploration
and
development
by the oil and gas industry.
61
The
practices
were
inefficient
and
uncertain
practices
promoted
by the Placer Law
only
private production from public lands all the more
It
was
made
difficult.
to the private industry's advantage to have
uniform
exploration and production practices and they encouraged this
regulation.
[9]
The Mineral Leasing Act passed in 1920.
with
a
single,
overriding intent:
to
It was enacted
prevent
waste
producing petroleum resources on the public lands.
overseeing
Committee
"It
reported:
hearings
on the Act in
The House
October
is conceded that there has been
in
1919
waste,
and
this bill is predicated upon that, and its object is to avoid
waste...".
presents
[10]
the
Furthermore,
Act's
the House Report on the
intent as "to
provide
an
bill
enlightened
method for the disposition of such mineral rights...reserving
to
it [the federal government] the right to prescribe
and
regulations against wasteful practices." [11]
and
its
leases
amendments
govern how private
can
Act
acquire
Initially, regulations
well-spacing and drilling practices to control
rate of production.
to
The
and permits to public land resources and then conduct
exploration and development on them.
governed
firms
rules
Later amendments permitted
limit production and to unitize pools.
unitization
of single pools,
the
regulations
By requiring the
the secretary of the
interior
gained authority to prevent the inefficient pumping of oil or
gas by several lessees with leaseholds sitting atop the
them
pool.
By
requiring
leases
to
form a single
to unitize -- to
production
62
combine
operation
same
their
-- drilling
would
occur
a more efficient
at
rate,
thereby
promoting
greater resource recovery. [12]
In
thought
little
laws,
the mineral leasing
enacting
that
to the environmental concerns
several
As one analyst of the
later would dominate debate.
decades
gave
Congress
mineral leasing laws commented:
...concern was focused on then popular matters such as
the monopolistic and unfair competitive practices of
the oil giants, Federal versus private ownership and
development of natural resources, and conservation in
of
waste.
sense of prevention
the
economical
law
Accordingly, the legislative history depicts a
under which protection of the public interest is
primarily intended to apply to economic and not
environmental considerations. [13]
It
not
was
until
oil or gas.
its
of
At that time Interior
used his authority
Krug
one
wells drilled in order to
of
scenic
resources in Jackson Hole.
protect
This "Krug
and Jackson Hole Stipulation enforcing it,
Krug.
US
was
resources
Secretary
to require unitization
number
standard
provisions
more generally to protect other natural
construed
besides
1947 that
Julius
limiting
the
wildlife
and
Memorandum,"
have since been a
attachment to all leases in the area designated
by
the Bureau of Land Management
or
order
to
[14]
Forest
In other areas,
Service
generally condition leases in
mitigate impacts to surface resources.
Decisionmaking Under the Mineral Leasing Act of 1920
Decisionmaking
exploration
guided
and
over
where
development
and
how
oil
may occur on public
and
lands
by the complex process established under the
63
gas
is
Mineral
Leasing
This
Act.
is
process
the
of
because
complex
complexity of the exploration and development process itself.
At
oil
the
outset of exploration
may follow.
if any,
activity,
Consequently, the process by
with more extensive
which decisions are made is incremental,
federal
further
what
gas resources will be found and thus
and
what
to know
it is impossible
review and involvement occurring as
extensive
more
development is proposed.
Oil
of
succession
exploration
gas
and
four
Exploratory
Investigation,
and
Development
Drilling,
a
Preliminary
stages:
interdependent
in
occur
and development
Whether one stage even
Production and, finally, Abandonment.
occurs is dependent upon the findings of that stage preceding
it.
the
than
Each subsequent phase is more involved and costly
one
preceding
it.
Each is more
environment than that preceding it.
to
threatening
the
And, each requires more
extensive federal involvement than that preceding it.
No single decision determines where and how oil and
exploration
and
development may occur.
controls the decisionmaking process.
Before
an
preliminary
an
oil
and gas company or
[See Figure
individual
be obtained from the
a special use
surface
permit
must
agency
(US
Before
any exploratory drilling may occur,
Forest
Service or Bureau of
land
Land
of
prospecting
management
Management).
an oil
and
or individual must obtain the lease from the
64
1]
conduct
can
surveys of surface and subsurface indicators
area's oil and gas potential,
company
federal
No single
agency
gas
gas
Bureau
FIGURE
1
The Four Stages of Oil and Gas Exploration and Development
in the National Forest System
and Required Federal Approvals at Each Stage
Federal Requirements
Stage
Preliminary Investigation:
Geophysical Analysis
no
approvals
needed
if no
surface impact involved
Prospecting
Special Use
Permit required from USFS
District Ranger
Seismic Testing
Lease to the area must
first be acquired from the
to
USFS
BLM
subject
Regional Forester's review
and recommendation
Exploratory Drilling
Permit to Drill must be
acquired from the Minerals
Management Service (MMS)
subject to USFS Regional
and
review
Forester's
recommendation
Development and Production
License from MMS subject
to USFS Regional Forester
review and recommendation
Abandonment
Bond released if USFS and
MMS conditions satisfied
upon agency review
65
If the tract
to the tract being explored.
of Land Management
to be explored is on acquired lands rather than public domain
the lease must be obtained from the US Forest Service
lands,
exploratory
the
occur,
a
beneath
resources
drilling.
but
the oil and gas
Before any exploratory drilling
may
from
the
drilling
Should exploratory
Service.
field
the
the lessee may not develop
obtained
license for development and production is
a
permit
not
does
must obtain a permit to drill
lessee
to a discovery,
until
of land
tract
Management
Minerals
lead
the right to develop
A lease confers
lands).
the
for
federal agency with full responsibility
other
(or
from the Minerals Management Service.
While all leases,
drilling permits and development
and
production licenses must be acquired from agencies within the
Department
of the Interior
(DOI) (Bureau of Land Management,
DOI decisions are generally
or Minerals Management Service),
based
on
recommendations
the
from
Forest
when
Service
national forest lands are involved. The Regional Forester (in
charge
of
of
one
for
responsibility
review
Supervisor
wilderness
all lease,
permit
regions)
and
has
license
by
the
District
Ranger
and
the
Forest
for the national forest under application in
his
is
for
areas
and
The
region.
making
Service
However, his decision is always subject to
recommendations.
initial
Forest
the nine
only
areas,
exception
primitive
to this
areas,
progression
recreation
irrigation districts, all of which require the Forest Service
Chief's
review
and final recommendation to the
66
appropriate
[15]
DOI agency.
The remainder
gas
of this chapter
and
exploration
development
and
impacts,
environmental
the four oil and
describes
each
during
federal role
the
associated
the
stages,
stage.
STAGE I: PRELIMINARY INVESTIGATION
They
gas resources are elusive.
and
Oil
the earth's surface and there is no way
beneath
are
hidden
of
telling
precisely where they are hidden and in what quantities but by
might
are
There
drilling.
ways to determine where oil
in order to give some idea of
however,
exist,
should
drilling
exploratory
-- "defining
investigation
This
occur.
gas
and
where
preliminary
two
involve
a prospect" -- can
surface geophysical analysis and seismic testing.
steps:
Surface Geophysical Analysis
Surface
a
defining
geophysical
analysis
Using
prospect.
is
on-site
first
the
surveys
step
in
aerial
and
photographs of various exposed geological formations combined
information
with
areas,
that
an
exploration in
nearby
the
initial prospect is defined and
oil and gas might be found is narrowed.
geophysical
interested
and
about
in
similar
probability
[16]
analysis is conducted by an oil and gas
interested
surface
or
Surface
company
obtaining a lease or already holding a
in developing
geophysical
analysis
67
its
potential.
involves
no
lease
long
as
disruption
of
As
surface
review.
resources,
it
requires no
permits
or
government
[17]
Seismic Testing
Seismic
analysis
testing
to
give
an
often
oil and
follows
gas
company
and consequently whether or not
even be undertaken.
straight
line is mapped through an area with
and gas potential.
to
an
exploratory
In seismic testing
should
The
detailed
more
expensive
drilling
line.
geophysical
about the potential oil and gas resources of
information
area
surface
promising
a
oil
Shockwaves are then generated along this
shockwaves are used to map deep strata formations
indicate where potential oil and gas "traps" (oil or gas-
bearing formations) may lie.
The shockwaves echo back
from
the different geologic layers and are recorded by a series of
sensitive
geophones.
These readings along a line are
then
combined to produce a profile of the subsurface geology. [18]
Seismic
One
testing can be conducted in one of three
involves
devices
heavy trucks carrying "thumping" or
that pound the ground to
"thumping"
method
generate
ways.
vibrating
slab
involves dropping a three ton steel
several times along the predetermined test line.
attached by chains to a crane on a
This steel
special
slab
is
[19]
The vibrator method employs four large trucks
with
a
vibrator pad that is about four feet square
mounted
between the front and rear wheels.
lowered
to
The
shockwaves.
truck.
equipped
and
These pads
the ground and then electronically triggered
68
is
are
by
the recorder truck.
moved
Like thumpers,
the vibrators are
then
a short distance forward to continue testing along the
line.
[20]
Using
trucks,
relatively
areas,
flat
though,
and easily passable
shockwaves
subsurface
obviously
are
blasting
generated
requires
terrain.
by
with dynamite.
roads
In
either
or
roadless
surface
or
Crews conducting
this
type of seismic testing in roadless areas use helicopters or,
infrequently,
horseback, for access. [21]
"leapfrogged"
from one site to the next;
while one crew
setting up a "shot" along a line, another
the last blasting.
A "shot" consists
of dynamite suspended,
crews
average
subsurface
between
blasting,
and 200 feet deep.
Before
survey
on average,
50
and
Seismic crews are
is cleaning
up from
of ten 5-pound
sticks
every 20 feet.
100
shots
per
Seismic
day.
For
"shot holes" are drilled to between 50
[22]
an oil or gas company will undertake
a
seismic
costing between $18,000 per mile for surface blasting
and $50,000 per mile for subsurface
blasting,
[23] it is only
logical that it would possess the leases to the area
On
is
some
occasions,
a
private seismic
testing
tested.
firm
will
conduct the testing and then sell their results to individual
firms
or
industry
associations.
For
example,
the
well-
publicized conflict over oil and gas exploration in Montana's
Bob
Marshall
Consolidated
testing
Wilderness
Georex
there.
centered
Geophysics
(CGG)
on
to
a
proposal
conduct
seismic
CGG did not possess any leases to the
69
by
area
but
was doing the exploratory work because several
gas
companies
interested in obtaining
were
lines
may blast the same or slightly altered
crews
different
times but for different
Usually,
though,
should
there.
Marshall
several
oil and gas companies.
[24]
firm will not make this expense without
a
that it has control of
assurance
Bob
and
Since testing results are proprietary,
dispute.]
Wilderness
some
leases
Chapter 4 for more information about the
[See
oil
mineral
rights
Therefore,
leases
the
a promising prospect be defined.
are usually acquired before seismic testing is begun and long
before any decision about eventual drilling can be made.
surface geophysical
Unlike
seismic
analysis,
testing
does disturb surface resources and wildlife. Seismic blasting
Since most seismic testing must
can start forest fires. [25]
occur during the summer or fall seasons when weather permits,
there is conflict with other backcountry users. [26] Frequent
helicopter
trips
diminishes
the
backcountry experience
ranchers
blasting
is
contaminates
however,
testing
are
prospecting
unknowingly
will
to
about
occur.
groundwater
[28]
lines
shot
These
little evidence
when
blasting
Sometimes
[29]
users or
of
impacts,
seismic
A
special
use
must be acquired from the
surface
land
one
permit
cross
supplies.
short term;
all
remains
recreationists.
for
there is a risk that backcountry
[27] Additionally,
cattle
and
generate noise that disturbs wildlife
year
later.
[30]
management agency before seismic testing may be conducted.
70
Federal Requirements: Special Use Prospecting Permits
special use prospecting permit must be acquired
A
from
surface land management agency before surface disturbing
the
preliminary investigation activities may be
USFS
and
BLM
control
prospecting on
conducted.
lands
The
within
their
respective jurisdictions.
For national forest lands,
be
this permit application must
for
filed with the USFS District Ranger responsible
This application explains the planned
to be surveyed.
area
survey
location,
methods,
information
is
proposal.
[31]
the
timing
and
project
whatever
needed by the District Ranger to evaluate
The
District
Ranger
completes
a
the
brief
environmentaI1 analysis to determine what conflicts with other
if any,
land uses,
also
determiines
permit
to
between
uses.
Various
to
particular
conditions
These
prospecting
may
conditions
surface
calving
the
other
consultation
occur
activity.
be placed on
the
to
[32]
prospecting
to
surface
upon
the
Should a proposed
shot
vary
area and project plans.
line run through
until
Informal
on
and
)revent or mitigate potential impacts
resources.
the
wildlife
the applicant and the District Ranger may
clarify or aImend the proposed
permit
should be placed
surface resources,
planned land
or
This environmental analysis
what stipulations
protect
established
may arise.
depending
a wildlife calving area or migration route,
land management agency may hold back
or migration
seasons are
over.
a
permit
[33]
Other
measures often include avoiding all live streams by at
71
least
100
feet;
[34]
no
activity
during
the
Memorial
Day,
Independence Day and Labor Day high recreation periods;
[35]
no
seismic activity during the grizzly bear
denning
period
(October 15 - April 30) or bald eagle nesting season (March 1
- July
31);
sites
[36]
specific locations of helicopter
and flight corridors;
[37] and,
preventing
landing
blasting
when extreme fire danger exists. [38]
A
prospecting permit does not confer any rights to
the
minerals discovered nor does it give preference rights to the
permittee
in obtaining leases for the
surveyed.
The
terms
the permit specify precautions to be taken by
the
of
lands
permittee in protecting surface resources,
preventing forest
fires and restoring the lands to their original
state.
[39]
The permittee must post a performance bond to ensure that all
stipulations
will be met and reclamation undertaken once the
testing is completed. A US Forest Service representative will
periodically inspect the project to approve bond release
terminate
to
the permit.
approve
the
[40]
and
The District Ranger is directed
proposed project if
it
"does
not
create
unacceptable impacts on the surface resources or unreasonably
conflict
denied
with
but
no
other uses." [41]
prospecting
These permits
permits are
issued
are
for
seldom
lands
expressly withdrawn from the operation of the mineral leasing
laws.
[42]
The Federal Leasing Process
As
not
mentioned,
an individual
or oil and gas company
is
required to possess leases before conducting preliminary
72
geophysical
exploration
in
an
area.
But,
should
this
analysis indicate a structure worth exploring further, leases
must
be
be acquired before an exploratory drilling permit
issued.
Oil
and
gas leases are issued
will
through
three
different systems, depending upon where the leasable tract of
public
land
is located.
before
been
leased
When a tract of
land
has
and does not contain known oil
never
or
gas
resources, it is leased non-competitively over-the-counter to
the first qualified applicant.
before but have since expired,
When leases have been issued
been canceled,
terminated or
relinquished, they are issued non-competitively through a bimonthly
lottery called the Simultaneous Oil and Gas
System.
Finally, when leases are for tracts of land within a
Known
are
Geologic Structure (KGS) containing oil or
Leasing
gas,
issued through a competitive bidding process.
they
Each
of
these three processes is described below.
Over-the-Counter Leases
Leases
issued
for
the
first time
in
an
area
unproven geologic reserves are known informally as
leases.
first
These
qualified
application
not
a
leases
are issued over-the-counter
applicant.
Any U.S.
with
"wildcat"
to
the
citizen can file
an
for an oil and gas lease as long as he or she
is
minor and does not already hold leases for more
than
246,080 acres in the state in which the applied for lease
located.
prospective
[43]
The
filing
process
is
simple.
All
lessee must do is review the land plats for
73
is
a
the
BLM
District
or
National Forest of interest
in
determine which tracts have not yet been leased.
order
to
The lessee
then
chooses the tract(s) that interest him and files a one-
page
application
minimum,
$75
for each.
[44]
comprise 640 acres;
A lease
tract
paid.
a $1 per acre annual
and,
rental
A
should
rental fee must be
(The Department of the Interior has proposed
the
at
it cannot exceed 2560. [45]
filing fee must accompany each application
the lease be granted,
must,
raising
fee to $3 per acre for the last five years of the
lease term.)
[46]
The lease term is ten years.
It is
non-
renewable.
Lease
Land
applications
Management
are always filed at the
(BLM) District
the lease tract is located.
for
leasing
under
with
for the state in which
public domain lands for oil and
evaluating
to
as amended.
each lease application
interest"
development.
in oil
and
resources
It is
and
gas
charged
attaching
any
protect
exploration
and
If the lease is for BLM lands, the application
is reviewed
in the same office
BLM ensures
that the land has not already
withdrawn
gas
a lease that are deemed necessary to
"national
from
as filed.
In its review,
that
the provisions of the mineral leasing
structure.
the
If
tract
is not within
the lease is available,
the
been leased or been
laws.
The BLM also confers with the Minerals Management Service
ensure
of
The BLM has full responsibility
the Mineral Leasing Act,
conditions
the
Office
Bureau
a
known
the BLM
to
geological
must
then
fulfill the requirements of the National Environmental Policy
74
Act
it
before
may be issued.
Impact"
Significant
(FONSI)
Usually
is made and
has
decision.)
been done for an oil
ever
[47]
no
The
of
No
environmental
(Only one environmental impact
impact statement undertaken.
statement
"Finding
a
lease
is
then
and
gas
issued
leasing
the
with
appropriate stipulations and attachments.
a
When
lease
is filed for land
application
under
US
Forest Service jurisdiction, the BLM forwards the application
on
recommendation.
[See
The Regional Forester is responsible for
making
to the Regional
Figure
2]
Forester
final recommendation to the BLM but it is
the
Supervisor.
Forest
been
issued
requirements
or
a
individuals
on
assessment
and
The USFS generally, but not always,
notice of its
intention
to
lease.
their mailing list as well as to
Some
considered in assigning stipulations to
Upon
the
Public comment resulting from the posted
applicant.
submits
NEPA's
local
There is seldom any consultation with the lease
newspapers.
[48]
satisfies
usually
forest headquarters also send notices to groups and
national
be
It
withdrawn.
by developing an environmental
public
and
The USFS ensures that the lease has not
concluding with a FONSI.
posts
made
usually
review and evaluation by both the District Ranger
after
may
his
for
completing
his
its
review,
the
recommendation to the BLM.
authority for issuing or denying a lease.
few lease denials
are ever recommended
the
Regional
notice
lease.
Forester
The BLM has
In fact,
final
though,
to the BLM and the BLM
has traditionally adopted the USFS recommendation. [49]
75
Only
FIGURE
2
.~~
APPLICANTSENDSOIL & GAS APPLICATION
TO BUREAUOF LAND MANAGEMENT(BLM)
BLM SENDSCOPYTO REGIONALOFFICE
AND REQUESTS
RECOMMENDATIONS
I
I
REGIONALOFFICESENDSCOPYTO FORESTS
AND REQUESTSRECOMMENDATIONS
FORESTSUPERVISOR
FORWARDS
COPYTO
RANGERDISTRICTFOR RECOMMENDATIONS
RANGERDISTRICTPERSONNELEVALUATELEASEAPPLICATION.
EVALUATIONMAYINCLUDESOMEOR ALL OF THEFOLLOWING:
I Check
aga
iLM
Oi & GOpat a- upate meary
2 CCk apg nst
ftllong
to
stemsa
pDropt.
A Approved Land Mamenl
PI·n whcM detU
,m O
b Pmfrmatic O G ain EAII comptatel
c
RAREItIaa
wldenW studYf rui adW/o
·
wtle
a
Wngton
Olc an tm4
OhIO
O &0toe
G
IFort Srl v
MnUUal2.
2323 73. tCI
· Ad
tW approed Prot cillv StlIuton
G
ris
PtCI a
gudes
*
DISTRICTDETERMINES
APPLICATIONIN
CONFORMANCE
WITHEXISTING
MANAGEMENT
DIRECTION
DISTRICTDETERMINES
NOT IN
CONFORMANCE
WITH EXISTING
MANAGEMENT
DIRECTION
RANGERDISTRICTDOESENVIRONMENTAL
ANALYSYS(EA. EIS.OR AMENDMENTTO EIS).
WHICHPROVIDESFOR PUBLICINVOLVEMENT
RANGERDISTRICTSENDSMEMO TO SUPERVISOR'S
OFFICE
RECOMMENDING
DISPOSITIONOF APPLICATION.I.E..TO ASSIGN
SPECIALSTIPULATIONS
OR RECOMMENDATION
FOR NOLEASING
FORESTSUPERVISOR
TRANSMITSRANGER
DISTRICTFINDINGSTO REGIONALOFFICE
REGIONALOFFICETRANSMITSFINDINGSTO CHIEF
AND TO BLM WITHRECOMMENDATIONS
WILDERNESS
& FEISRECOMMENDED
WILDERNESS(RAREII) AREAS
CHIEF REPLIESTO BLM WITH
RECOMMENDATIONS
Source: Oil and Gas Lease Applications of the Los Padres
National Forest, Draft Environmental Analysis, USDA/USFS,
Pacific Southwest Region, Los Padres National Forest, July
1981.
76
when the BLM decision is contrary to the USFS
must
recommendation
the BLM complete an additional environmental assessment
before rendering its decision. [50]
All
lands under the control of the
are public lands.
two
types
federal
Within this large category,
of land that are treated somewhat
the mineral leasing laws.
government
though,
are
differently
by
Public domain lands are those that
have always been under the federal government's jurisdiction.
Acquired
lands
purchased
by
leasing,
are those lands that have been given
a federal agency.
acquired
lands
of
to
[51]
Essentially,
Lands
this act extends
the Mineral Leasing Act of 1920
to
over
decisions.
Thus,
National
forwarded
leasing
to
and
exploration
and
or
mineral
the
acquired
but gives the surface resource management agency
control
for
regards
lands are governed by the Acquired
Leasing Act of 1947.
provisions
With
to
full
development
when the BLM receives a lease application
Forest acquired
the
Regional
lands,
this
Forester for
application
his
consent
is
(or
rejection) rather than for his recommendation. [52]
Stipulations
govern
what
activities
the
lessee
may
undertake and vary depending upon where the tract is located.
Some stipulations
issued.
BLM
are standard
Form
and are attached
3109-3 -- "Stipulation for
to all leases
Lands
Under
Jurisdiction of Department of Agriculture" -- is attached
all
leases
governs
for
surface
conducting
national forest
use
exploration
and
lands.
restoration
and
by
development
77
This
the
to
stipulation
lessee
activities.
in
[53]
Other
stipulations are specific to a particular BLM or
region
or
leasable
tract.
For
example,
Occupancy"
(NSO)
stipulations
wilderness
areas
or areas with fragile
than
(Less
one
percent
of
are attached
all
"No
to
are
attached
leases when
may
stipulations
calving,
denning,
exploration
during which exploration or development
periods
time
occur.
may
Others govern specific areas within a leased tract that
or may not be developed because of especially
surface resources. [56] Some stipulations
potential
future
designation).
Federal
NTL-6
events
(ie.
a
sensitive
are conditioned on
proposed
wilderness
and Indian Onshore
Oil and Gas Leases" -- is the
Survey's Conservation Division (now the
Management
Service) attachment to all leases issued.
specifies
lessee
the
of
-- "Notice to Lessees and Operators
Geological
NTL-6
before exploratory drilling or field development
and
may be undertaken.
environmental
preliminary
in
guidelines
applying
for
a
Its 15 pages describe how
review
should be conducted.
fulfilled
Minerals
the
analysis
requirements that must be
US
by
production
taken
NSO
Some stipulations govern the
development activity.
[55]
important
this
or migration areas might be affected by
nesting
or
to
in
resources.
have
stipulation.) [54] Specific wildlife protection
Surface
leases
surface
leases
USFS
and
final
environmental
It outlines the steps to
permit
to
drill
and
for a permit to
drill.
be
provides
for preparing surface use and operating plans
application
a
It
to
also
accompany
an
specifies
how wells should be abandoned and the surface area
78
reclaimed.
[57]
The Simultaneous Oil and Gas Leasing System
Originally,
when
leases
terminated or relinquished,
the
surface
Bureau
were
canceled,
they would have been restored to
land management agency (US
Forest
Service
or
of Land Management) and become available for leasing,
once again,
Oil
expired,
and
over-the-counter.
But, in 1959 the Simultaneous
Gas Leasing System was
leasing
of
established
to
previously issued tracts of land.
facilitate
The BLM
had
encountered considerable interest in previously issued leases
and had difficulty determining who,
qualified
hands.
in fact,
was the "first
applicant" when these leases were returned to
its
Unable to control the "altercations" that often arose
between those claiming to be first in line, the BLM developed
a
new
system
commonly
filing
for issuing these
leases.
This
referred to as "the lottery" since all
cards
are placed in a bin and then
system
is
applicant's
drawn
for
each
available tract. [58]
As
USFS
with
when
national
Service
over-the-counter leases,
the BLM informs
it is going to post previously leased
forest lands for the next lottery.
can
additional
then
supplement the
listed
The US
leases
The
USFS
again
lottery is held bi-monthly
79
on
Forest
with
makes a public notice
intent and conducts an environmental analysis.
The
tracts
stipulations deemed necessary to protect
resources.
the
any
surface
of
its
59]
(January, March,
May,
July,
September,
November)
The list of available
Management
State
can
Applications
than
of
one
month
the
filing
more
until the
15th
[60]
is
drawing
fee
can be filed per tract)
Filing
must accompany each
more
not
to have several hundred
[61]
and will undoubtedly
$75, increased
one
rich west,
it
per
applications
annually
with the BLM receiving almost 4 million
for these leases.
applications
A
A
than
[62] Approximately 7,500 leases are issued
through the lottery,
1980
information
application.
For tracts of land in the energy
tract.
BLM
address and signature.
held for those tracts receiving
uncommon
The
process.
is a simple
application.
is
drawing.
then be filed for any tracts (but no
necessary is the applicant's name,
$75
before
the necessary filing card and the only
provides
month.
in the Bureau of Land
tracts are posted
Offices
one application
the month.
on the first day of the
change
[63] (These figures are
now that the filing
for
is
fee
from $10 in 1981.)
Known Geologic Structures
Leases
in offshore
is
land within
oil and gas leasing.
a
known
geologic
at the discretion
The tracts
in size.
used
Tracts
are
Leases are issued to
the
"responsible qualified bidder." [64]
centered on conflict over non-competitive
80
of
to be leased are
and then placed on the auction block.
more than 640 acres
highest
of
The process followed is very similar to that
the BLM.
not
tracts
(KGS) are issued competitively
structure
selected
for
This
analysis
leases.
Land
management
decisionmaking
is
proving
most
difficult
and
controversial for non-KGS leases; uncertainty is greater and,
unlike
KGS
areas,
exploratory drilling has frequently
occurred there previously.
non-KGS
Hence,
not
proposed exploration
in
areas is more likely to threaten other land uses
or
relatively pristine areas.
STAGE II: EXPLORATORY DRILLING
Should
geologic
begin.
seismic
formation
wells
Nationwide,
about
indicate
does exist,
Exploratory
"wildcat"
testing
commonly
because
of
one
sixteen
in
their
significant amounts of oil or gas.
hundred
forty
a
promising
exploratory drilling
are
wells
that
referred
unknown
wildcat
plans
to
as
potential.
wells
produce
However, only one in one
wells produce enough to succeed
financially.
[65]
Each wildcat well requires a cleared and levelled 3 to 5
acre
site.
derrick,
the
The
a
more
site accomodates
a drill pad,
100
foot
100' by 100' reserve pit for drilling muds,
general operating facilities such
fuel and water storage tanks,
and either
a
trailers,
as
generators,
pipe racks, toilets
a water well or surface water pump. [66]
wells are drilled
and
to an average of 10,000 feet.
Wildcat
[67]
Exploratory drilling requires that access roads into the
wellsite
exist.
be
constructed
or upgraded
should
they
already
These are generally 14 to 20 feet wide graded roads.
[68] There
is growing interest in using
81
helicopter
rather
than
road access in cases where the terrain is difficult
pass
or
when
special surface
resources
would
be
to
harmed
(especially in wilderness areas).
Helicopters have never yet
been
however.
used in the continental
US,
[69]
Helicopter
access is more than three times as expensive as road
costs
average $160,000 per airlift mile for each well versus
$50,000 per mile for roads.
Exploratory
years.
drilling
Commonly,
and
$11
million
helicopter
million
[70]
activities last from one
drill
if
access
a
discovery
be used,
is
made.
[71]
these figures increase
this
be acquired
from
the
Should
to
for a discovery.
the extensive surface resource effects,
must
two
Costs average $9.8 million for a dry well
for a dry hole and $18 million
Given
to
2 or 3 wells will be drilled during
exploratory stage.
to
access;
Minerals
$15
[72]
a permit
Management
Service before a lessee can begin constructing an exploratory
well.
Federal Requirements: Applications for a Permit to Drill
A
permit
must be acquired before a lessee can
exploratory drilling.
(APD)
details
Minerals
the
An Application for a Permit to
lessee's
plans and is submitted
Drill
to
the
Management Service (MMS), a new Department of
the
Interior agency.
Established in February 1982,
the same staff, offices
Geological
indicates
conduct
Survey's
where
and responsibilities
82
has
as the former US
Conservation Division.
the exploratory drilling
the MMS
[73]
will
This
APD
occur,
how
access
roads will be located and developed,
mudpits
and
and
where
where
other drillsite facilities will be
additional
wellsites
may
be
and
how
constructed
located.
Site
reclamation plans once exploratory drilling is completed must
be included
in this APD.
Environmental
drilling
are
[74]
impacts
associated
high
will
where
pose different problems than one located in
mountain meadow.
Consequently,
although it has
Bureau
of
Land
Management)
for
its
a
full
the MMS forwards the
to the surface land management agency (US Forest
or
the
a wellsite on flat desert
responsibility for decisionmaking,
on
exploratory
obviously dependent upon precisely
exploratory well is to be located;
terrain
with
APD
Service
review
and
recommendation.
The
USGS
Agreement"
and
USFS developed a
detailed
in 1977 that lists the responsibilities
agency
in responding
to an APD.
clear
that the USGS
(now the MMS) is solely
issuing
to
In this agreement
of
each
it is made
responsible
for
permits and is "the sole representative with respect
direct contact with the lessees and operators in
related
to
oil and gas."
consultation
the
"Cooperative
USFS
preliminary
Nonetheless,
considerable
does occur between the lessee and operator
while
exploratory
[75]
matters
project
drilling
plans
activity
environmental
are
being
review
being
developed
conducted.
occurs
and
even
and
[76]
A
before
an
operator's
plans are finalized and the APD
submitted.
[See
Figure
This review identifies potential
conflicts
with
3]
83
FIGURE
3
Procedural Guidelines for Acquiring
an Exploratory Drilling Permit in the National Forest System
~OpMaAcd
plny
uAwsto GSmd uea
d
nd
I 1. Omm
Mqrmtm
or FnwS
. 5Kv.L.
2. dmdinm
nhrcmmy d
e
ighm.
OamLf
Pidi
M AC vA1m
I. anuhi.pi
uwmrvi
n
.
2. Neis. far.1 inramrmts ncmey.
SOL
hr
W
3 Mlld opOR wif condloo
ma
u PbIm
ad aap f no
4. Rnqujai
fldd sulmmd
IU
I.
dS
erap.5
2. Jat fhdd pcam. I nrcmmy.
ifnmmy.
i.Opbruwv"wdlbocman
f
I. Suiy md
m
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2.kdmWills
hoo
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Z Arca.
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j id
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irpcu.ein
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SOUIRCE
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84
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i t
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1. 30dL.
other land uses or resources and impact mitigation steps that
might
avoid these conflicts.
The purpose of this review is
to assist the lessee and operator in developing project plans
and directing initial surveying and staking activities before
they occur.
Once
the
lessee
and
operator's
project
plans
are
completed, they are filed with the MMS and USFS in the formal
APD.
A field inspection with MMS and USFS officials and the
lessee's
operator and contractor(s) occurs in
seven working days.
other
surface
Specific
use
during
accordingly.
areas are reviewed at
that
impact mitigation
measures
10 days of the field inspection,
its recommendation to the MMS.
amended
environmental
MMS
1982.)
on
officials
then
Seldom is an EIS deemed necessary for
drilling projects.
assessment
must
drilling.
the
proposed
exploratory
(The first EIS on an APD was completed in
[79]
Unless USFS and MMS
about the need for an EIS,
No
be
the USFS
an
time.
[77]
may
this trip and the operator's plan
complete
early
time.
[78]
Within
submit
The proposed wellsite, access roads and
environmental
discussed
approximately
officials
disagree
the permit will be issued at this
more than 30 days should have transpired
between
APD receipt and permit issuance. [80]
When
from
the
APD
the MMS, it usually posts a public notice of its review
of the proposal.
may
US Forest Service receives the forwarded
raise
Public comment resulting from this
considerations
in
85
its
review
and
notice
proposed
conditions on the eventual permit.
the
Additionally,
requires
all
[811
Environmental
Protection
Agency
to
prepare
oil and gas lessees and operators
Spill
Prevention
While
the
Control and Countermeasure
(SPCC) plans.
lessee or operator is not required to
EPA officials may request it and,
plan with the EPA,
immediately,
it not be provided
hazardous material spill occur,
this
file
should
Should a
fine the operator.
the EPA will then review the
SPCC plan. [82]
In
to
addition
fulfilling
this
EPA
operators must also comply with Department of
requirement,
Transportation
and Interstate Commerce Commission requirements. [83]
State and Local Involvement
and
State
vary
depending
local requirements of lessees and
upon the state and
locality.
operators
Most
states
require notification and a monthly report should a well prove
Some
productive.
requirements
that
states
must
have
be
protection
environmental
fulfilled.
Local
and
county
governments become involved when access, zoning or rights-ofway issues arise. [84]
STAGE III:
The
extended
development
gas field
impacts
and
FIELD
DEVELOPMENT AND PRODUCTION
associated with exploratory
compounded
and production
should
a discovery
be warranted.
drilling
are
be
and
made
An average
oil and
is 640 acres with well spacing of 40 acres for
and 160 acres
for gas.
Generally,
86
oil
this implies that four gas
wells
or sixteen oil wells,
field.
[85]
cleared
100'
Each
facilities.
derrick
reserve
again requires
will
a 3
to
5
be
and
the
replaced
the
general
wells have
with
a
been
acre
100' by
operating
drilled,
system
of
the
20'
high
or "grasshopper" lifts to pump the oil and
Field
development requires "in-field"
pipelines,
and
temporary
housing
workers.
pit,
[86] Once
"horsehead"
the
can be located in one
and levelled drill pad with a 100' derrick,
fenced
[87]
wellsite
maximum,
access
gas.
roads,
utility lines from wellsite to wellsite
and
associated
structures
for
and
field
Additionally, pipelines and transmission lines into
field must be constructed.
tanks are required.
constructed
Onsite oil and
gas
storage
[88] Eventually, injection wells will be
to promote secondary or tertiary recovery of oil
and gas resources.
[89]
If helicopter
access
is required,
a
staging area must be constructed outside the field as well as
landing sites within the area. [90]
and
snow
cases,
a
Roads must be maintained
removed during the winter season.
[91]
"sweetening" plant must be constructed when
gas" (Hydrogen Sulfide) is mixed with the natural
The
average
life
of a producing
range is 15 to 50 years.
depends
[93]
field is 30
some
"sour
gas.
years
The life of a specific
[92]
-- the
field
upon the size of the discovery.
Production is an expensive undertaking.
cost
In
On average, the
of developing a field is $2.5 million per
well.
Once
developed,
production costs include $3 million to drill each
additional
production
well,
87
$10,400 per mile
annually
to
maintain
access roads,
the producing field,
$96,000 per well annually to operate
$15 million per mile for powerlines and
$750,000 per mile for pipeline construction. [94]
Before a lessee can develop the field, a license must be
acquired from the Minerals Management Service.
Federal Requirements: Licenses for Development and Production
Should exploratory drilling lead to discovery of oil and
gas resources in commercial quantities warranting production,
the
operator
First,
cannot
simply proceed to develop
the
a license must be obtained from the MMS.
The review
and
evaluation process for this license is similar
for
an
APD.
field.
The operator submits an operating
to
that
plan
that
details how field development will proceed, what construction
activities
will occur and where and how reclamation will
completed.
[95]
review
This
plan
and recommendation.
is forwarded to the
Consultation between
USFS
the
be
for
MMS,
USFS and the operator will likely amend the operating plan to
mitigate
environmental
conflicts
if
environmental
impact
possible.
impacts and avoid
[96]
assessment and,
statement
with
The MMS
then
frequently,
associated
involvement
before
exploratory
drilling activities,
bond
production.
Both
inspect
operations
before
hearings
the operator must
As
to ensure that all
and
with
post
development
USFS and MMS officials will
88
an
an environmental
public
undertaking
resource
completes
rendering its final decision.
performance
the
surface
a
and
periodically
conditions
are
and all stipulations
being fulfilled
adhered
to.
[97]
STAGE IV: ABANDONMENT
begins
Abandonment
The well is plugged and
completed.
once
immediately
is
production
an
Generally,
capped.
above surface pipe "monument" is required that lists location
and
This requirement can be waived
of well.
name
the
by
particularly when surface resource concerns warrant it.
MMS,
[98] All equipment, utility lines, pipelines, powerlines, and
field facilities are removed.
and revegetated
re-contoured
The disturbed surface area is
as closely
as possible
to
its
original condition. [99]
The Appeals Process
by federal agencies,
Decisions
merely
a recommendation
even if the decision is
by the USFS to the BLM or MMS, may be
appealed by any group or individual affected by the decision.
There
a 30-day appeals period
is
permitting
state
and
licensing decision.
following
[100]
each
leasing,
The appeal
must
how the particular individual or group is affected
by
the decision and the specific complaint with how the decision
was reached.
[101]
An appeal is always filed with the
superior official in an agency's hierarchy.
leasing
appeal
recommendation is made by a Regional
upheld
For example,
a
Forester.
An
of this recommendation would therefore be filed
the USFS Chief
by
the
D.C.
in Washington,
Chief,
with
If the recommendation
it can be further
89
next
appealed
to
is
the
of
Secretary
recommendation
the
decision,
is forwarded to the BLM District
made
Department
the
Office.
to
A
the
of the Interior
then
can
this decision
be
D.C., and then to
in Washington,
Board of Land Appeals
[102]
[103]
If the
of the Interior.
to the Secretary
and, finally,
lawsuit
can
be filed and the federal agencies taken to court.
At
a
or group is still not satisfied,
individual
often
accordingly,
to the BLM Director
appealed
USFS
If the recommendation is accepted and
BLM District Officer.
decision
of
Secretary
or individual can protest this recommendation
group
a
the
uphold
again
Agriculture
the
Should
Agriculture.
least two years would be consumed in this process. [104]
Conclusions
development and decisionmaking processes
The
above
appear,
essentially
land
ideal,
review
an
of
objective
Although
production.
and
extensive
to
application
this
determine
the
is
process
mineral
leasing
but,
the different
At each stage,
Consistent with the
is appropriate.
the
detailed
paper,
straightforward.
managers
response
on
described
what
conservation
efficiency
in
do
not
laws
acknowledge other surface resource values, these concerns are
addressed
in
land
reviews.
agency
administrative
The
decisionmaking process is consistent with the land management
paradigm;
it
assumes
the decisions
that
amenable to scientific review and analysis.
three
chapters illustrate,
to
be
made
are
But, as the next
the process is very different in
90
practice.
It
ineffective.
is
Even
extremely
though
apparent bases are covered,
disputed.
political
analysis
is
and,
moreover,
exacting
As the next three chapters indicate,
the problem
not
permitting
changed
since the mineral leasing laws were enacted and the
decisionmaking process established.
has
all
decisions reached are frequently
posed by oil and gas exploration on public lands has
markedly
and
changed
in
concert,
But, because the process
oil
and
gas
leasing
decisionmaking is at an impasse in many
forests.
91
and
national
CHAPTER 2 -- REFERENCES
[1]
30 U.S.C.
[2]
30 U.S.C. Section
[3]
John Ise, The United States Oil Policy, Yale University
Press, New Haven, 1926, page 296.
[4]
Paul W. Gates, History of Public Land Law Development,
Public Land Law Review Commission, Washington D.C.,
November 1968, page 732.
[5]
Ibid., pages 732-741.
[6]
Ibid.
[7]
Ise, op. cit., page 327.
(8]
E. Louise Peffer, The Closing of the Public Domain:
Disposal and Reservation Policies 1900-1950, Stanford
University Press, Stanford, California, 1951, pages
130-133.
Section 181-287
(1976)
21 et seq.
[9] William E. Doherty, Jr., Conservation in the United
States: A Documentary History -- Minerals, Chelsea
House Publishers/Van Nostrand Reinhold Co., New York,
1971, pages 3-22.
[10]
Heather Noble, "Oil and Gas Leasing on Public Lands:
NEPA Gets Lost in the Shuffle," draft manuscript for
Harvard Environmental Law Review article, November
1981.
[11]
Ibid.
[12]
James B. Martin,
"The Interrelationships
of the Mineral
Lands Leasing Act,
The Wilderness Act,
and the
Endangered Species Act:
A Conflict in Search of
Resolution," 12 Environmental Law 363, (1982), pages
368-369.
[13] Heather Noble, op. cit.
[14]
Memorandum Regarding Oil and Gas Leases, F.R. Doc. 478091; Filed August 29, 1947; also, Federal Register,
August 30, 1947, page 5859.
[15]
Forest Service Manual,
(16]
For
thorough
exploration
requirements
Section 2822.
descriptions
and
of the various
development stages
at each see:
92
and
Oil and Gas:
oil and
the
gas
federal
Environmental
Assessment of BLM Leasing Program, US Department of the
Interior,
Bureau
of Land
Management,
Dickinson
District, April 1981; Oil and Gas Exploration and
Leasing
within
the
Washakie
Wilderness:
Draft
US Department of
Impact Statement,
Environmental
Agriculture, Forest Service, Rocky Mountain Region,
Shoshone National Forest, 1981; and, Heather Noble,
"Oil and Gas Leasing on Public
the
Lands: NEPA Gets Lost in
Shuffle," 6 Harvard Environmental Law Review
117,
(1982);
[17]
Interview with Al Reuter and Gary Marple, USFS Minerals
Specialists, Bridger-Teton National Forest, Jackson,
Wyoming, November 1981.
[18]
David Sumner, "Oil and Gas Leasing in Wilderness -What the Conflict is About," Sierra, May/June 1982;
Heather Noble, op. cit.; and, Oil and Gas: Environment-
al Assessment of BLM Leasing Program, op. cit.
Assessment
of BLM
Leasing
[19]
Oil and Gas:
Environmental
Program, ibid., page 18.
[20]
Ibid.
[21]
Oil and Gas Exploration and Leasing within the Washakie
Wilderness: Draft Environmental Impact Statement, US
Rocky
Forest Service,
Department of Agriculture,
Mountain Region, Shoshone National Forest, 1981, page
C-l, (hereinafter Washakie dEIS); see also, Heather
Noble, op. cit., and David Sumner, op. cit.
[22]
High Country News, "I'm a Juggie," volume 13, number 1,
January 9, 1981; see also, David Sumner, ibid.
[23]
Washakie dEIS, op. cit., page A-2.
[24] David Sumner, op. cit., page 29.
[25]
Heather Noble, op. cit., pages 120-123.
[26]
Ibid.
[27]
Ibid.
[28]
Interview with Story Clark, Jackson Hole Alliance for
Responsible Planning, Jackson, Wyoming, November 1981.
[29]
Heather Noble, op. cit.
[30]
David Sumner, op. cit., page 29.
[31]
Forest Service Manual 2821.2.
93
[32]
Interview with Al Reuter and Gary Marple, USFS Minerals
Specialists,
op. cit.
[33] Washakie dEIS, op. cit., pages C-2-C-4.
[34]
Ibid., page C-1.
[35]
Ibid.
[36]
Ibid., page C-3.
[37]
Ibid., pages C-1-C-3.
[38]
Ibid., page C-2.
[39]
US Department of Agriculture,
June 4,
1897,
Ref:
FSM 2821,
Act
Forest Service,
Exhibit #10,
of
Washakie
dEIS, op. cit.
[40]
Forest Service Manual Section 2821.2.
[41]
Ibid.
[42]
Forest Service Manual 2821.1.
[43]
Land
of
Bureau
Interior,
of the
Department
US
Oil and Gas
Simultaneous
Federal
"The
Management,
Leasing
System:
'Government
Important
New Information About
Oil and Gas Lottery',"
the
1981.
[44]
US General Accounting Office, Report to the Chairman,
Subcommittee on Oversight and Investigations, Committee
on Energy and Commerce, House of Representatives,
Accelerated Onshore Oil and Gas Leasing May not Occur
as Quickly as Anticipated, EMD-82-34, February 8, 1982,
page 5, (hereinafter GAO Report).
[45]
Marion Clawson, The Bureau of Land Management, Praeger
Publishers, New York, 1971, page 129.
[46]
GAO Report, op. cit., page 5.
[47]
Washakie dEIS, op. cit.
[48]
Interview with Al Reuter and Gary Marple, USFS Minerals
Specialists, op. cit.
[49]
Ibid.; also, Heather Noble, op. cit., page 142.
[50]
33, 24 I.B.L.A.
83 Interior Dec.
Stanley M. Edwards,
102
23 I.B.L.A.
Esdras K. Hartley,
(1976);
12, 14
(1975).
[51]
30 U.S.C.
351-359
(1976)
94
[52]
Forest Service Manual, Section 2822.
[53]
See
Environmental
Assessment
for
Oil
and
Gas
Exploration in the Palisades Further Planning Area, US
Department of Agriculture, Forest Service, Targhee and
Bridger-Teton
National
Forests,
Appendix
1,
(hereinafter Palisades EA).
[54]
Congressional Record, May 20, 1980, page S5646.
[55]
See Washakie dEIS,
and Appendix
op.
cit., Appendix B, Exhibits 4-9
C.
(56]
Ibid.
[57]
Palisades
[58]
US
Department of the Interior,
Bureau of
Land
Management, "The Federal Simultaneous Oil and Gas
Leasing System...", op. cit.
(59]
Forest Service Manual 2822.42; also, interview with Al
Reuter and Gary Marple, USFS Minerals Specialists,
EA, op. cit., Appendix
2.
op. cit.
[60]
US
Department
of
the
Interior,
Bureau
Management, "The Federal Simultaneous
Leasing System...", op. cit.
[61]
Ibid.
[62]
Ibid.
[63]
Ibid.
[64]
30 U.S.C.
[65]
Oil
Section
and Gas:
Oil
of
Land
and
Gas
226(6)
Environmental
Assessment
of BLM
Leasing
Program, U.S. Department of the Interior, Bureau of
Land Management, Dickinson District, April 1981.
[66]
Washakie dEIS, op. cit., page A-4; see also, Heather
Noble, op. cit., pages 121-130.
(67]
Oil and Gas: Environmental Assessment of BLM
Program, op. cit., page 23.
Leasing
[68] Washakie dEIS, op. cit., page A-3.
[69]
Interview with Dick Hamilton, District Manager,
Oil Company, Denver, Colorado, November 1981.
[70]
Washakie dEIS, op. cit., page A-3.
95
Getty
[71]
Ibid.
[72]
Ibid.
[73]
Oil and Gas Journal,
June 7,
also, Jackson Hole Guide,
page A3.
[74]
1982,
pages 66-67;
1982,
April 22,
Thursday,
see
US Department of the Interior, Geological Survey,
Conservation Division, "Notice to Lessees and Operators
of Federal and Indian Onshore Oil and Gas Leases," NTL6.
March
1977,
[75]
"USFS/USGS Cooperative Agreement,"
Washakie dEIS, Appendix D.
[76]
For example, see the Cache Creek and Little
Creek cases discussed in Chapter 3.
see
Granite
[77] NTL-6 and "USFS/USGS Cooperative Agreement," op. cit.
[78]
Ibid.
[79]
"USFS/USGS Cooperative Agreement," ibid.; also, Cache
Statement:
Thrust Environmental Impact
Creek-Bear
Proposed Oil and Gas Drilling Near Jackson, Teton
US Department of the Interior,
Wyoming,
County,
Geological Survey, Conservation Division, US Department
of Agriculture, Forest Service, Bridger-Teton National
Forest, 1982.
[80]
See
[81]
Interview with Al Reuter and Gary Marple, USFS Minerals
Figure
3.
Specialists,
[82]
op. cit.
Part
112;
40 Code of Federal Regulations
of
Environmental Assessment
Oil and Gas:
Title
also,
see
BLM
Leasing Program, note 65.
[83]
Oil
and Gas:
Environmental
Assessment
of BLM
Leasing
Program, op. cit., page 14.
[84]
Ibid.
[85]
Ibid., page 30.
[86] Washakie dEIS, op. cit., page A-5.
[87]
[88]
Ibid.
Ibid.,
also,
pages A-5-A-6;
pages 124-127.
96
Heather
Noble, op. cit.,
[89] Washakie dEIS, ibid., page A-5.
[90]
Cache Creek-Bear Thrust Environmental Impact Statement,
op. cit.
[91] Washakie dEIS, op. cit., page A-4.
[92]
Heather Noble, op. cit., page 125.
[93]
Ibid., page 124; also, Washakie dEIS, page A-4.
[94]
Ibid., Washakie dEIS, page A-5.
[95] NTL-6 and "USFS/USGS Cooperative Agreement," op. cit.
[96]
Ibid.
[97]
Ibid.
[98]
Oil
and Gas:
Environmental
Assessment
of BLM
Leasing
Program, op. cit., page 39.
[99]
Heather Noble, op. cit., pages 127-130.
[100]
Forest Service Manual 2822.47.
[101]
Interview with Dave Carty, USFS Minerals Specialist,
Minerals and Geology Division,
Washington Office,
September 1981; also, interview with Al Reuter and Gary
Marple, USFS Minerals Specialists, op. cit.
[102] The
Interior
established
Board
in
of
1950
"in
Land
order
Appeals
to
(IBLA)
eliminate
was
the
widespread criticism of organizational conflict in
quasi-judicial
activities,
reduce duplication
of
effort, establish modern unifrom rules and procedures,
eliminate
unnecessary
intermediate
appeals,
and
expedite the decisionmaking process," and to provide "a
fair,
impartial,
and expeditious
consideration
in all
quasi-judicial matters before the department."
All
National Environmental Policy Act and Mineral Leasing
Act appeals go before the IBLA. See, James M. Day,
Director,
Office
of
Hearings
and
Appeals,
"Administrative
Interior:
The
Appeals,"
17
Procedures
in the Department
of
Role of
the Office
of Hearings
Rocky Mountain Mineral Law
the
and
Institute
1
(1972).
[103]
Phone interview with Syd Gray, USFS Minerals and
Geology Division, Washington D.C., August 1981; and,
interview with Dave Carty, USFS Minerals and Geology
Division, Washington D.C., September 1981.
97
[104]
Interview with Dave Carty, op. cit.
98
CHAPTER
3
THE POLITICS OF OIL AND GAS LEASING AND PERMITTING
On
paper,
the decisionmaking
process described
in
the
last chapter appears detailed but straightforward. In theory,
it is a rational process involving professional land managers
reviewing proposals,
proposals,
assessing impacts associated with these
evaluating
several alternatives and,
rendering a decision.
management
only then,
The mineral leasing laws direct
officials
land
to consult with each other as well
as
with lessees, operators and contractors proposing exploration
and
development.
professional,
Such consultation is consistent with
scientific
land
management
paradigm.
the
It
assumes that, with sufficient information about a proposal, a
land manager will be able to make a "wise" decision; one that
efficiently utilizes public land resources and,
in so doing,
satisfies the public's interest in land management.
In
story
practice,
with
operators
when
an
and
leasing
Frequently,
process plays out a
expanded
cast
of
much
and
exploration
different
characters.
land managers are not the only
other
decisionmaking.
the
decisions
Lessees,
voices
must
be
groups become involved in Forest
These
groups
raise
additional,
heard
made.
Service
often
conflicting concerns, and thereby considerably complicate the
Forest Service decisionmaking process.
Each
Forest Service lease or permit decision
national forest resources.
allocates
Thus, some decisions benefit some
99
user groups at the expense of others.
at stake in each decision,
all affected interests inevitably
try to influence decisionmaking.
in
this chapter,
politicized
Because there is a lot
The result, as will be seen
is a very different and considerably
process
than that envisioned when
the
more
mineral
leasing laws were enacted.
The Many Publics Involved in Oil and Gas Decisionmaking
Whether
or
not a group organizes and how
tries to influence oil and gas decisionmaking,
what
actively
depends
it has at stake in the particular decision.
it
upon
Because of
the ongoing wilderness reviews and forest management planning
processes,
[1]
especially
well-organized
Forest
Service
these
wilderness
generated
industry
and
environmental
and knowledgeable
and how it
makes
groups
about
decisions.
are
the
US
Furthermore,
review and forest planning processes
considerable interest in and knowledge
about
have
the
particular areas proposed for oil and gas exploration.
Often, oil and gas exploration and development threatens
established
public
attributes.
As a result, national and regional environmental
organizations
These
groups
land
uses and wildlife
take a great interest in oil and
actively
follow
administrative
decisionmaking
fails,
other
pursue
gas
participate
issues.
in
the
else
when
all
avenues for achieving
more
favorable
November
1981,
The Wilderness
In
monitoring
oil
Areas,
proposed Wildernesses,
and
and
wilderness
process and,
outcomes.
25
and
gas lease proposals
100
12 BLM
in
Society
28
was
Wilderness
Wilderness
Study
Areas
and
16 USFS Further
Planning Areas
in the
six
Rocky
Mountain States (Idaho, Montana, Wyoming, Utah, Colorado and
New
Mexico).
exploratory
[2] When proposals to either lease or
drilling
environmental
being
organizations
recommendations
formal
are
considered
to the USFS.
involved
through
in
the
involvement
of
especially
when
the
voice their concerns
monitor
decisionmaking
communication with Forest Service
analysis
and
decisions
have
an
area
recreational
of
particular
importance.
staff
decisionmaking.
environmental organizations
is
national
scenic,
Environmental
make
whatever
The
persistent,
or
regional
significance because they will be precedent-setting,
affect
USFS,
and
They participate in
public hearings are held and
informally
by
permit
or will
ecological
group
or
involvement
seldom ends when a decision, is made should that decision run
counter to what they perceive to be the appropriate outcome.
Different
groups and individuals value the resources at
stake in oil and gas exploration and development differently.
Each
group
with
a decision differently.
assesses the risks and the
benefits
As a result,
associated
rarely do
these
groups agree on what decision the Forest Service should make.
Environmentalists
scenic
lands.
and
are
ecological
concerned about
resources contained
protecting
in
the
the
public
They fear that energy development will destroy these
resources
Wilderness
forever.
Society,
William
offers
environmental view:
101
Turnage,
one
Director
explanation
of
The
of
the
In
Europe
societies
there
that
was
have
a
long
been
in
cultural
place
tradition;
tens
for
of
centuries have their great monuments, their great
cathedrals,
the
symbols of their
civilization.
of
people who
nation,
a
nation
America is a much newer
are deeply attached to nature.
It's formed our
And to us,
character.
our cathedrals,
the monuments
of our civilization, are the National Parks, the great
Wilderness Areas, the wild rivers, the eagles of
Alaska.
Those are the things that make Americans
And we've learned more than
different and special.
any
other
people
in the world to take care of
those
things, and preserve those things. [3]
Brock Evans,
vice-president of the National Audubon Society,
of course we
course we need resources,
"Of
concurs:
need
minerals and energy and all those sorts of things...But, more
important,
more
precise
these
from
is the question
these
spots,
[4] Regardless
remaining?"
lands,
apropos,
environmentalists
that
development simply should not occur.
places
potential
of some
and
exploration
To them,
the benefits
to existing and future generations of preserving these
intact
it
little
last
of the resource
argue
of do we need
lands
outweighs the opportunity costs of the fuel resources
foregone, regardless of how extensive they might be.
Like national environmental groups, oil and gas industry
closely
associations
level decisions.
cases
having
and
monitor precedent setting
policy
They routinely participate in site-specific
a broad impact as well as
development
and
legislative
associations
do not themselves
activity.
in
federal
While
policy
industry
apply for oil and gas
leases
and drilling permits, they do have a stake in these decisions
through
their memberships.
Association
(RMOGA),
The Rocky Mountain
for example,
102
has 650 member
Oil and
Gas
oil and gas
corporations in the Rocky Mountain region.
file
lease
pursue
and permit applications and
oil and gas exploration
well as private lands,
lawsuits
in
generally.
the
those
[5]
Mountain
Legal
important
actively
on public
as
RMOGA files administrative appeals or
Similarly,
Foundation
otherwise
and development
cases that will
States
Since its members
affect
its
membership
industry interest groups such as
Legal Foundation
(MSLF) and the
Pacific
(PLF), advocate development interests
cases,
just
as
environmental
interest
in
groups
support preservation objectives. [6]
Predictably,
exploration
industry
and
environmentalists.
groups
approach
development
differently
Nonetheless,
Kea Bardeen,
oil
and
from
gas
the
attorney for
the Mountain States Legal Foundation, does not believe MSLF's
concerns
to be in opposition
to those of preservationists:
The fact that we don't go around
protection
believe
all
advocating
wilderness
the time doesn't mean that
in Wilderness,
we
don't
that we would like to see
it
all levelled ....
it's extremely important.
But...
wilderness
values
and mineral values
are
not
necessarily incompatible. And that's because...[we]
don't see wilderness as having to be totally pristine
for all time.
To
[7]
preservationists,
energy
development is not
compatible
with The Wilderness Act ideal of an area "untrammeled by man,
where
man
is
a visitor who does
not
remain."
[8]
They
believe that wilderness, once raped, can never be restored to
its virgin state.
energy
[9]
To industry interest groups,
development is short-term and reversible.
though,
Perceiving
the quality of wilderness differently, industry groups assess
103
the
costs
and
differently.
that
the
benefits
of
exploration
and
development
In contrast to preservationists, they conclude
costs to society are much greater
exploration
is prohibited.
development,
not
Thus,
preservation,
if oil
and
these groups argue
best
promotes
the
gas
that
public
interest.
Not
all
groups
"public interest."
at
stake
in
frame their arguments
in terms
of
the
Some groups have more parochial interests
these
decisions.
For
example,
outfitters
protested exploratory drilling in Wyoming's Gros Ventre range
because
they
feared
it
would
scare
away
wildlife
and,
thereby, the hunters they guide through these mountains for a
living.
the
[10]
Similarly,
ranchers who graze their cattle in
national forests argue against the seismic testing
dynamite
that
testing
threatens
unknowingly
occur.
criss-crosses
the
Western
cattle and
forests.
the
This
stockmen
cross over shot lines when blasting is about
[11]
limited
both
many
These differences in values are therefore
to exploration and development in Wilderness
Controversy
is
backcountry
areas,
exceptionally
generated
by
proposals
recreation areas,
scenic or wild.
in
with
who
to
not
Areas.
heavily
used
or areas deemed to be
Oil and gas exploration
and
development proposals are apt to incite protest in almost any
area that has already established land-uses and
that
lands
users.
industry interest in the resources contained in
is
intensifying,
with established users.
proposals more frequently
Now
public
conflict
As will be seen, these users include
104
big game outfitters, ranchers using public lands for grazing,
local
communities and others concerned with maintaining
status
quo or promoting
for a particular
area.
a use different
their
eye
development
little
that
on
USFS
decisions.
organize
potentially
around
interests.
These
that
proposed
and industry
these groups do not ordinarily
oil
and
gas
In general,
consequence to them.
will
that
Unlike the environmental
associations discussed above,
keep
from
the
But,
affect
specific
exploration
and
these decisions are of
when a proposal is
their
concerns
issue
to
they
made
then
protect
their
groups perceive an immediate stake in the
decisions made; one that will affect their daily lives.
When
the
(NCRA)
first
Canyon
outside
National
proposed
Cooperative
Refinery
Association
an exploratory well in
Jackson,
Wyoming,
it
Cache
would
have
appeared
a reasonable proposal to an outsider.
already
went up the Canyon and other development
Creek
likely
A dirt
road
activities
had occurred there in the past. [12] An exploratory oil well
did not seem out of place.
outraged.
it
the
But, Jackson Hole residents were
They questionned the proposal on the grounds that
would diminish
the quality of life in Jackson
Hole,
tax
town's streets and public services and detract from
the
area's exceptional tourism and recreation opportunities. [13]
Teton County Commission Chairman Bill Ashley protested:
To us it doesn't make any sense to screw up prime
recreational areas with roads and other impacts of oil
and gas exploration unless it's as a last resort.
In
this
area,
oil and gas and even mining
and timbering
are somewhat incompatible with the high priority given
to recreation and wildlife. [14]
105
The
Jackson
sentiment,
visit
Hole
Chamber
of
Commerce
echoed
justifying its opposition to the
Jackson
a
similar
well:
Hole first to see the area and second
"people
to enjoy
it...the Chamber's purpose is to cater to these desires,
detract from them." [15]
Jackson Hole residents valued Cache
Creek
Canyon as their "backyard;" it was a critical part
their
character.
amenity
[16] To them,
the costs of
losing
of
this
were far greater than any oil and gas that might
discovered there.
not
be
NCRA, on the other hand, believed that the
potential oil and gas resources there did warrant exploration
and possible development and that,
once completed,
the area
could be restored to Jackson Hole's standards.
The Process in Practice
Because of the many competing
gas
leasing
and
straightforward
reality,
permitting,
process outlined
highly
politicized.
at stake in oil and
the seemingly
technical
in the last chapter
and
stakes
involved and because these many groups are
supporting
three
pathologies
basis
can only partly be
different decision
pathologies afflict the
for
politicize
the
claims
explained
outcomes.
process.
And,
the process by giving a
of
is,
and
in
This marked contrast between
theory
in
practice
values
conflicting
In
by
the
organized
practice,
these
three
substantive
interests
without
providing a means for accommodating their concerns:
First,
convincing.
the
process is not sufficiently informative
Forest Service analyses,
106
or
no matter how thorough
and seemingly objective, do not indicate what decision should
a "right" choice
be made;
not
to be the correct
can be proven
decision
outcome
to
those groups who
to
convincing
one,
no
the process
is
a
perceive
more appropriate than that
be
because
Moreover,
is elusive.
different
by
reached
the
Forest Service.
It separates different
Second, the process is divisive.
into
interest
groups
strategic
behavior
bridging
the
exacerbates
adversarial
It provides no
among them.
chasm
obvious
means
for
hence
only
decision
that
and
between them
political conflict over the
the
encourages
and
camps
must be made.
Finally,
the
process is not decisive.
the
Service ultimately makes a "decision," the "decision"
Forest
begins
next phase of
the
the decision
On the contrary,
rarely ends the controversy.
merely
Even when
the
real
decisionmaking
process.
The
remainder of this chapter illustrates
pathologies
and
their consequences.
these
Drawing from
three
several
controversial cases, this analysis pinpoints where the actual
process
diverges
from theory and to what
The
end.
cases
highlighted involve national forests along the Rocky Mountain
Range in northern Wyoming,
are
not unusual;
Idaho and Montana.
onshore oil and gas leasing
These
and permitting
decisions are proving controversial from California's
Nevada
Mountain
Range
Leasing and permitting
to the Green Mountains
decisions
107
cases
of
Sierra
Vermont.
that in the past took one to
two months
to make,
hard
are those national forests sitting
hit
now take up to ten years.
Particularly
atop
what
is
known as the Western Overthrust Belt along the Rocky Mountain
Range.
The
Overthrust Belt extends 2,200 miles from Alaska
to South America.
newsweekly,
structural
it
development
Since
for
that
years."
technology
of
in the oil and gas industry's
is "a geologic masterpiece with thrusts
complexities
explorationists
mysteries
As described
have
boggled
[17]
becoming
With
more
discovery
U.S.
Intermountain Region of Montana,
this
sophisticated,
the
being
solved.
seven
years
and gas industry efforts have concentrated on
Colorado.
area
9,000,000
Wyoming,
the
Idaho, Utah
Interest in obtaining leases and permits
is intense.
The USFS estimates
acres within this area.
of
and
of Utah's Pineview Field just
oil
minds
exploration
the Overthrust Belt are slowly
ago,
and
the
and
that it
Of this 9
in
manages
million,
5.5
million acres have already been leased and the remaining
3.5
million are under lease application. [18]
Numerous leases are involved in the cases highlighted or
mentioned
in
this analysis.
Seven hundred leases
stake in Montana's Bob Marshall Wilderness.
leases
were
Decisions
yet
to
Shoshone
leases,
involved
in
Wyoming's
are
at
[19] Two hundred
Palisades
area.
[20]
on one-hundred thirty-five lease applications have
be
made for the Washakie
National
covering
California's
Forest.
180,000
[21]
acres
Wilderness
Two-hundred
are still
Los Padres National Forest,
108
in
Wyoming's
fifty-seven
outstanding
some
having
in
been
filed as long as ten years ago.
[22]
130 lease applications
are under consideration in Vermont, covering the entire Green
Mountain National Forest. [23]
east
coast,
In national forests along the
4800 leases were outstanding in February
1982.
[24]
Final
delayed
been
decisions
on these lease applications have
for up to ten years.
appealed
Service
has
by
These decisions
dissatisfied user groups
or
been
have
either
the
Forest
deferred decisionmaking on them out of
concern
for other surface resource values that might be harmed by oil
and gas operations.
issues
approximately
domain
lands
national
the
12,000
each year,
leases total
for
all
these outstanding leases
public
for
the
forest system are not an insignificant concern
for
federal officials.
of
Given that the Bureau of Land Management
In 1980, Senator Henry Jackson, chairman
Senate Committee on Energy
and
Natural
Resources,
wrote then Secretary of the Interior Cecil Andrus to find out
what
were.
was causing the delays and how extensive they
actually
Andrus responded:
Appeals of BLM State Office oil and gas decisions
cause immense delays in lease issuance.
There is at
present a 6-9 month backlog of protests on appeal
before the Interior Board of Land Appeals.
In
addition,
all
action toward lease issuance
is
suspended
for 120 days following
an IBLA decision
anticipation of an appeal to Federal Court.
some delay is unquestionably necessary in the
that
a
legitimate
protest or appeal
is
in
While
event
filed,
the
present adjudicatory process is being abused. [25]
Andrus
went on to describe the extent of
the
delay,
using
just one of the nine BLM state offices as an example:
72
percent of the 7400 oil and gas lease applications
109
[in the Wyoming
backlogged
for more than one year
State Office] are tied up in other agencies, mostly in
the Forest Service,
and most of these as a result of
the RARE II wilderness review process. [26]
Andrus
expressed
concern for these delays and suggested
to
Senator Jackson that more manpower and resources be allocated
to the BLM leasing program.
1980 was an election year and Cecil Andrus was succeeded
by
Watt.
current Secretary of the Interior James
Watt,
a
Colorado attorney,
had been president of the Mountain States
Legal
an
Foundation,
out
to
sympathies
environmental
and permitting process.
and
of
he
his
He
immediately
to
the
But,
Watt
attributed
predecessor.
formidable obstacles to speeding up the
encountered
issue
problems
rectify
advocating
group
energy exploration on public lands.
greater
set
interest
industry
made
it
leasing
His efforts further politicized the
news
front page
across
the
country.
Notwithstanding his efforts, leasing and permitting decisions
remain ensnarled in administrative appeals and Forest Service
reviews.
The problem cannot be remedied by the efforts of a
Secretary
of the Interior,
even though
the
Secretary,
on
paper, has final authority.
As
seen
administrative
the
remainder
decisionmaking
of
process
this
chapter,
is at the root of
impasse over oil and gas leasing and permitting.
current
three
in
pathologies
sufficiently
that
informative
afflict
the process
or convincing,
-- it
it is divisive
is
the
the
The
not
and it
is not decisive -- make the decisionmaking task interminable.
Neither
the
actions
of powerful political
110
actors
or
the
expertise of professional land managers can produce decisions
that
are
and
accepted
involved.
Power
over
by
supported
these
the
all
decisions
has
key
groups
become
well-
balanced.
I. The Process is Not Sufficiently
the
When
BLM
USGS
or
Informative
application
to the Forest Service,
respond
preparing
by
an
a
forwards
or Convincing
lease
permit
or
Forest Service officials
of
analysis
environmental
the
analysis covers the specific aspects of the
proposal.
This
proposal,
potential
impacts
on
and,
resources
surface
finally, ways in which these impacts might be mitigated.
point
an environmental
of
whether
or
assessment
not a full environmental
to
(EA) is
Policy
[27]
Act.
In
theory,
straightforward.
It mirrors
Service
in
conducts
this
practice,
it
decisionmaking;
is
all
does
analysis
this
not
of
process
not
obvious
its
appears
the Forest
decisions.
sufficiently
upon
(EIS)
Environmental
the type of analysis
almost
determine
impact statement
should be prepared as required by the National
One
In
inform
completing
an
environmental assessment what the agency should do.
The Limits of Technical Expertise
Leasing and permitting
hoc
in
manner.
great
Rangers,
evaluations
are not made in an ad
The extensive Forest Service Manual spells out
detail the procedures to be followed
Forest
Supervisors
111
and
Regional
by
District
Foresters
in
analyzing
a
decisions.
proposal and making final
because
and
Unfortunately, however, these guidelines call for
considerable
officials.
recommendations
judgment
on
the
part
of
Forest
Service
The guidelines are necessarily broad and flexible
each decision involves different types of areas
and
resources.
In
response to a lease or permit proposal,
government must either reject the application,
submitted,
Forest
accept
subject
to
reviewing
accept it
certain
a
lease
as
conditions.
or
permit
must decide whether or not to accept it and,
if
should accompany the lease or
if any,
what conditions,
permit.
it
officials
Service
application
so,
or
the federal
In making these decisions, the Forest Service Manual
lists ten factors that must be considered:
1. Statutory authorities.
and planned
2. Existing
uses.
3. Dedications.
4. Impact on surface resources.
5. Damage
6. Degree
to watershed.
of
surface disturbance
and
difficulty
in
restoration.
such as wilderness character,
7. Special values,
resources,
and
archaeological sites, cultural
endangered wildlife habitat.
8. Term
of
the
lease
and
probable
nature
of
operations.
9. Economic considerations, such as relative values of
minerals and surface resources and scarcity of and
demand for minerals.
10. Range of alternatives
112
available
for operations
and
land uses and for environmental protection.
[28]
But, how much damage to the watershed is permissible, or
degree
what
entirely
up
be
surface disturbance should
of
to
the
discretion
of
the
is
allowed
field
officer.
this same subjective judgment must be exercised
Furthermore,
in determining "the relative values" of oil and gas resources
and surface resources; judgment must be exercised because the
at stake are of unknown
and gas resources
oil
how a Forest Service field geologist is to
Moreover,
type.
consider
is
data in decisionmaking
these
and then
for minerals"
of and demand
"the scarcity
determine
and
quantity
not
prescribed.
This question has been debated without resolution for decades
by
should
result,
a
Service official decide that an area's fuel resources
Forest
are
As a
throughout the world.
experts
resources,
occur
example,
For
contrary.
that
decided
individual
another
a
in
designation,
exploratory
Wyoming
Bill
loss
the
of
can
easily
drilling for oil and
recommended
of
Cunningham
The
to
argue
for
gas
the
USGS
and
when the Forest Service
area
surface
to the value of these fuel
relative
is negligible,
resources
that
and
important
critically
should
wilderness
Wilderness
Society
argued:
Most of Wyoming is already available for oil and gas
exploration without objection from conservationists.
is
There
simply
need
no
to
risk
the
loss
of
irreplaceable wild places, such as the Gros Ventre,
uncertain quest for nonrenewable
a costly,
for
resources.
Even
a
[29]
consideration
as
113
innocuous
as
"statutory
authorities"
officials
those
requires judgment on the part of Forest Service
and hence allows for criticism and
disagreeing
decision.
To
Palisades
area
or
who
are adversely
a large extent,
of Wyoming
opposition
affected
by
the
debate over leasing
in
the
and Idaho centered
on the
Service's authority to enforce stipulations that it
to
the
leases.
authority
to
Similarly,
of the US Forest
deny a drilling
proposed
Gros
permit
by
debate
still rages
Forest
attached
over
Service and US Geological
for environmental
Ventre wilderness area.
the
Survey
reasons
Department
in
the
of
the
Interior Solicitor Lowell Madsen ruled that the APD could not
be
denied,
[30]
environmentalists
and his ruling was quickly
and local residents.
challenged
Phil Hocker of
by
the
Sierra Club argued that all the Interior Department needed to
do
to
deny an APD was to find that approval
public
interest.
involving
the
attorneys
were
mandatory,
and
[32]
is not
in
the
[31] He also noted that in a separate case
Palisades
arguing
Further
that
Planning
approval
that disapproval is valid
of
Area,
APDs
where
federal
is
not
justified.
An editorial in the Casper Star Tribune queried:
What awesome force could so suddenly make helpless
yesmen out of our resource stewards, so suddenly and
utterly strip them of their traditional values and
will to balance conflicting interests?
Why, it was no less a power than a non-binding legal
opinion of an inhouse lawyer...That opinion hasn't
ever seen the inside of a courtroom and they've given
up.
The
task
[33]
force adopted Madsen's opinion and
environmental analysis accordingly.
114
completed
the
Now the agencies are in
court.
The
Forest Service Manual
guidelines
describe
those
instances where a prospecting permit or lease may be denied:
A [prospecting]
permit may be refused
if the degree of
disturbance
will
be excessive
and
result
in
unavoidable serious impacts on other resources. [34]
Oil
and
gas
leases may be denied when the
Forest
Environmental Assessment indicates that oil and gas
Service
activity
in a particular area would:
(1)
seriously
interfere with other resource
values,
(2) be
incompatible with the purpose for which
the
area is being used or administered, or (3) permanently
destroy
or render useless the land for the purposes
for
which used or dedicated....(or) when the value of
the land, and its resources, for the purpose for which
it is being used outweighs the
foreseeable
benefits
that would be derived from extraction of the mineral
resources,
and the existing use cannot be adequately
protected by stipulation. [35]
Oil
and gas leases may also be denied when an area has
withdrawn from the mineral leasing laws.
But,
been
specifically
withdrawing a particular area in order to preclude leasing is
discouraged:
There
should
be relatively
few
requests
for
withdrawals from operation of the mineral leasing
laws,
because
the land and
surface
resources
ordinarily can be protected by proper stipulations, or
because
detrimental leasing can be prevented by
recommendations or refusal to consent to applications.
[36]
The
guidelines
explicitly state what conditions
warrant
a
withdrawal:
Withdrawal
may be requested if mineral leasing
(1) be
incompatible with the purpose for which
land
is dedicated,
used,
or reserved from use;
would
the
(2)
destroy or damage the values sought to be preserved;
(3) hamper, restrict, or render useless the plans,
programs, or functions for which the land has been
utilized;
(4)
nullify major accomplishments and
115
investments;
unjustified
or
(5)
risk
on
create intolerable
lands
having
hazards
or
or
planned
for
special purposes or programs, such as city watersheds,
experimental forests, developed recreation areas, and
archaeological sites. [37]
Again, as with land withdrawals, the guidelines make it clear
that
"wilderness designation shall not be sole justification
for decisions against leasing, permitting or licensing." [38]
Forest
Service
decisionmaking
judgment
other
under
staff have broad
these guidelines.
determine
uses
when
existing
and
guidelines,
any
on
another.
a
impacts
number of
a single proposal;
One
disastrous;
the
District
"serious."
They
must
of
classified
Under
these
different
decisions
are
none is more
correct
than
Ranger might deem a proposal to
be
another might view it to be inconsequential.
A
Ranger living in a community adamantly opposed to a
might reflect these pressures in his decision;
district
a
with
benefits
or when disturbance might be
its
of
uses "outweigh"
in
make
interferes"
and surface resource "values."
mineral extraction,
"excessive"
discretion
They must
about when a proposal "seriously
land
possible
field
far
from
the
beaten
path
may
be
proposal
a Ranger in a
more
easily
influenced by the applicant's concerns. [39]
The
Forest
Service acknowledges that judgment must
exercised in decisionmaking.
for
review
by
In fact,
the process provides
various agency officials
recommendations made by their subordinates.
authorized
of
116
decisions
and
Each official is
to amend the decision or completely
when his judgment indicates otherwise:
be
overrule
it
After
completion
of the EA,
or EIS if required,
the
Forest Service officer responsible for its completion
will forward it, through channels, to the official
responsible for the Forest Service decision.
Each
preparing and reviewing line officer will recommend an
alternative,
concur
with
or
change
previous
recommendations,
and provide
an explanation
for
that
position.
Proper stipulations will be provided for
each reasonable alternative, even though it is not
recommended, in case the responsible Forest Service
officer or the BLM does not concur with previous
recommendations.
In
other
words,
judgmental.
[40]
the decisions
to be
made
are
admittedly
None can be analytically proven correct.
Just as these Forest Service line officers can
exercise
judgment in reviewing and adjusting a subordinate's decision,
so
too can those groups and individuals potentially affected
by a decision.
permit
A lessee applying
for an exploratory
may perceive his operations to be totally
drilling
compatible
with existing surface resources and pose little threat to
elk
on
calving area or nearby stream.
the
other
hand,
may
An environmental group,
perceive
the
same
proposal
potentially devastate a previously pristine area.
of values
are legitimate.
But,
an
depending
to
Both sets
upon the specific
decision rendered, one or the other perceives its concerns to
be unaccommodated.
not
been
aired
acknowledged
directly
The issue is not that their concerns have
or
them.
reflects
that
the
Rather,
their
Forest
the
final
could
interagency
occur
Cunningham
has
decision
input nor convinces them
contrary outcome is more appropriate.
USFS/USGS
Service
For example,
task force determined
in the proposed Gros
Ventre
that
not
neither
the
the
when
a
drilling
wilderness,
Bill
of The Wilderness Society immediately questionned
117
their analysis:
The EIS statement that the drilling in Little Granite
would "affect very few people" is patently false. The
Gros Ventre is one of our nation's most important
unprotected wilderness areas in terms of vastness in
size and natural beauty and diversity.
This and
future generations of Americans have a stake in the
preservation regardless of whether they actually set
foot in the area.
[41]
Because of the range of different values involved, the Forest
is
Service
unable
decisionmaking.
to
objectively represent
each
one
in
Hence, those who perceive their concerns to
be unaccommodated oppose the decisions made.
Assessing
the "Relative Values"
of Resources
Although Forest Service officials must exercise judgment
in making oil and gas leasing and permitting decisions,
do
not
take
this responsibility
importance of each decision.
involved,
data,
they
are
developing
thorough in their
analyses,
assessing
alternatives,
is
acquiring
impacts
and
used
by
officials to assess the "relative values
of
decision.
Several
minerals
Precisely because judgment
the
a
mitigation
Service
minimize
making
potential
Forest
lightly nor
they
measures
and,
only
then,
different approaches have been
and surface resources."
Some have
used
numerical
ranking schemes while others have used less exacting relative
rankings
of
Consider,
alternatives.
for
example,
the
Palisades leasing decision.
Before
Palisades
making
their
area of Wyoming
leasing
and Idaho,
118
recommendation
for
the USFS Supervisors
the
in
the
Targhee
and
Bridger-Teton National
Forests
completed
their environmental assessment on the proposed leasing.
From
their own analyses as well as from comments received in three
public meetings,
alternatives
the Forest Service study team selected five
and
five
decision
evaluate these alternatives.
criteria
with
which
to
The alternatives were:
1. deny all leases
2. defer a decision until a later time
3. lease all of the Palisades
4. lease
a
portion
of
area
the
area
that
was
not
environmentally
sensitive
(11%) and defer
a
decision on the remaining 49% [40% of the Palisades
area had previously been leased]
5. lease
the
remaining
less
49%
sensitive
with
11%
and
lease
no-surface-occupancy
the
allowed
[42]
The five "evaluation criteria" used were:
1. protection of wilderness values
2. identification of energy resources
3. compatibility with all natural resources
4. consideration of potential changes in
economic environment
5. compliance
authority
To
determine
with
Forest
Service
the
five
Alternative
direction
their preferred alternative,
criteria using
5
socioand
[43]
Service team rated each of the five alternatives
of
the
a
numerical
the
Forest
against
scoring
each
system.
(49% NSO) received the highest score with
10
and Alternative 1 (deny all leases) was second highest with a
score
of
9.
[44]
Assigning a particular numerical value to an alternative
119
depended
Forest
upon
the particular
evaluator's
perspective.
Service official obviously applies his
knowledge
Sierra
and experience
Club,
organizations
different
in his ratings.
professional
But, members
of the
The Wilderness Society and other environmental
assigned different values and thereby
conclusions.
"protected...wilderness
threatened
A
What
the
values"
these same values.
Forest
the
reached
Service
Sierra
In recommending
argued
Club
argued
leasing
in the
Palisades area, the Forest Service contended that oil and gas
exploration was "compatible with all natural resources." [451
The
Sierra
roadless
Club
area
argued
were
that a road and drilling
hardly
compatible
with
rig
the
in
a
existing
wilderness and wildlife resources of the Palisades. [46]
In
selecting
Alternative
5
as
its
"preferred
alternative," the USFS found that it:
is
responsive
since
it
to the key issues raised by the
balances the intense opposing
environmental
groups
and the energy
public
concerns
industry;
is
of
an
action alternative. Refusing to lease or deferment of
leasing would be unresponsive to National energy needs
and would fail to comply with Forest Service policy
and direction; and, allows the land surface management
agency (FS) more time to properly assess the adverse
impacts on resource values and to formulate realistic
mitigation measures to more effectively offset these
impacts....
impact
be
(and)
to prepare
for the
administrative
that may result should a significant
identified.
resource
[47]
But, this finding assumed that "opposing concerns" would also
view
the decision as "responsive." Additionally,
that
the Forest Service retains the authority and the
to
control
future
actions
under
the
leases
Environmental organizations disagreed with both
120
it assumed
power
issued.
assumptions.
They voiced their concerns at public meetings,
the
in writing to
USFS EA team and in person to USFS staff in the
Targhee
and Bridger-Teton National Forests. [48] When their concerns
had
not been addressed to their satisfaction,
they took the
agency to court.
Much
of the controversy over leasing in
the
Palisades
area was created by uncertainty; uncertainty about whether or
not development on the leaseholds would ever occur and, if it
did,
whether
This
would
diminished
or not the stipulations would be
lead
enforceable.
one to believe that uncertainty
would
and analysis greatly facilitated when a
be
specific
drilling proposal is submitted to the Forest Service. As seen
in the Cache Creek/Little Granite Creek
disputes
often
is
should
remain and are perhaps
no
cases,
heightened.
agreement on what the boundaries
though,
Again,
of
the
there
analysis
be at the outset nor on what the conclusions of
this
analysis indicate should be decided.
The
prepared
Little
Forest
Service
and
Geological
an EIS on two exploratory
wells
Granite Creek outside Jackson,
document,
released in August 1981,
of the development
Survey
jointly
in Cache Creek
Wyoming.
The
and
draft
painted a bleak picture
impacts in either area:
For Cache Creek it concluded:
Should field development occur in the Cache Creek
watershed it would likely produce high impacts on
recreation, wildlife (particularly elk), and local
culture for many years (20 years or more)....The
potential for contamination of surface water would be
increased....A
major elk calving area would
be
eliminated....Visual
qualities would be
severely
121
compromised....Noise from development drilling and
vehicles, the road system, and landscape disruption
would make the area unattractive to many forms of
recreation.
[49]
For Little Granite Creek it concluded:
The Little Granite Creek road alternative...would
create
moderate
to
high impacts
on
riparian
vegetation, fisheries, wildlife, visual esthetics, and
wilderness attributes of the Little Granite drainage
....Reclamation
of
the road
would
be
particularly
difficult because of the steep terrain and unstable
slopes traversed...scars would persist for many years
along the mile of road directly
below the wellsite...
Field development...would produce high impacts on
present
years.
To
the
the
of the area for 20 to 30
what action should be taken
USFS/GS
alternatives
for
character
[50]
determine
impacts,
routes
wilderness
interagency
for each proposal:
Cache Creek
task force
given
these
analyzed
two different access
and one access
road and the
use
two
road
of
helicopters rather than roads to reach the wellsite in Little
Granite
Creek.
The draft EIS also discussed
of full field development,
proposal.
should
the implications
it someday occur,
for each
These alternatives were evaluated in the draft EIS
using nine criteria:
1. Determine
the area's potential
to contribute
to the
Nation's energy needs.
2. Recognize
the lease rights
of NCRA,
other members of the Bear Thrust Unit.
3. Provide
for visual
quality objectives
Getty,
of the
as defined in the Cache Creek-Bear Thrust
evaluation.
and
area
mapping
4. Protect
water quality,
aquatic habitat,
and
riparian
zones,
both onsite and
in
access
corridors.
5. Minimize adverse effects on wildlife, basically by
recognizing diverse habitat needs and protecting
122
big-game populations.
6. Maintain traditional
Creek drainage.
recreational
use
of
Cache
7. Minimize man's intrusion into the recommended Gros
Ventre
Wilderness in the exercise of mineral
exploration and development activities.
8. Feasibility
of reclaiming disturbed areas
to
natural conditions at the cessation of activities.
9. Minimize impacts on the community of
Jackson
(overload of community facilities, noise, hydrogen
sulfide, and other safety factors). [51]
The
task force supplemented this list of evaluation criteria
with
an
additional
practical,
objective that
"alternatives
must
be
economically feasible, and provide a balance with
respect to environmental protection and exploration." [52]
The
each
task force then studied the impacts associated with
proposal on 19 "elements:" soils,
air quality,
noise,
surface water, ground water, vegetation, wildlife, fisheries,
recreation, wilderness, cultural resources, visual resources,
population,
local culture,
economics,
employment, housing,
community services and contribution to nation's energy needs.
[53]
These impacts were rated either "high,"
"low,"
With
using a dot system to visually compare
this
data
in hand,
each
alternative
"moderate"
or
alternatives.
was
evaluated
against the nine criteria using a rating scheme:
Each Government scientist (FS and USGS) working on the
EIS was asked to rate the magnitude of the impacts
of
alternatives for his specialty, according to these
three levels.
"Low" impact assumes very little change
from status quo conditions; "moderate" implies some
change to the extent that these changes would alter or
destroy
critical/key
habitat
or
highly
valued
activities, produce intense community conflict, be
obvious to anyone, or offensive to anyone, as the case
may be...the impact ratings were thoroughly reviewed by
123
to assure a sense
USGS or FS personnel
experienced
of
reasonableness and consistency. [54]
As might have been predicted, the Forest Service analysis was
Phil Hocker of the Sierra
immediately called into question.
Club criticized the task force's evaluation method:
The
dot-system
used for evaluation
of alternatives
is
Subjective judgements
too simplistic to be credible.
which are not
are hidden in the assignment of dots,
the supplemental
supported by the text of the dEIS,
The bias of the authors of the dEIS
studies, or fact.
has
affected
Because
he
construction of the
faith in the process
He
quantities.
should
analyze
full
eventual
oil or gas be found in
significant
listed several alternatives that he thought
but that were not discussed
were plausible
intent
to
Hocker immediately questioned its conclusions.
development
questioned
also
charts
naive
used
criticized the cursory attention given to
field
He
no
had
alternatives,
He
the
[55]
shown.
of The Wilderness
satisfied
or not the action
whether
Act as the
EIS.
in the draft
contended.
authors
the
He
concluded:
The
draft
EIS under review
is "so inadequate
as
to
preclude
issuance
meaningful analysis," and a retraction and
of
a new draft or multiple drafts is
required
(40 CFR Part 1502.9(a)).
The scope of
the
draft is imprecise and appears to shift within the
document. The draft omits important alternatives, and
includes others which are inconsistent with policy
The draft adopts a new
positions taken in the study.
Federal policy on lease administration and uses this
new policy to justify other positions within the
study; however, the sweeping impacts of adopting such
a policy are not studied,
1508.18(a)).
Specific
as is required
impacts
are
The conclusions
portrayed or omitted.
[56]
incorrect and insupportable.
Hocker
was
joined
by
several
organizations in criticizing the EIS.
124
other
(40 CFR Part
inaccurately
of the dEIS are
environmental
Again, some suggested
that
there
were
other alternatives that should
analyzed but were not.
have
been
Others reached different conclusions
using the same data acquired by the Forest Service-Geological
Survey task force.
approval"
Creek
The task force had recommended
of the Cache Creek APD.
that
"approval
"limited
They concluded for
could be limited to the
Cache
initial
APD
only, with the understanding that the government might pursue
a disapproval
option
test
[57]
well."
emphasized
Federal
subsequent
Earlier
that "[u]nder
oil
production
and
gas
only.
A
to the drilling
in the dEIS,
the present
leasing
discovery
This
well only
national
Service
that
the
prompted
environmental
conclusion
preceding
Similarly,
the
mobilization
for
they
geared
had
the
toward
leads
to
There is no proviso for
action."
anger from local
groups who argued
[58]
residents
that
analysis was internally inconsistent.
and analysis
proposal,
is
without special Congressional
discrepancy
first
structure,
automatically
development rights under the system.
one
however,
legal
program
of the
reached was not supported
and
the
Forest
They
argued
by the
facts
it. [59]
Getty
Oil's
task force concluded,
Little
Granite
Creek
even though helicopter
satisfied all of their criteria,
to
recommend
road access via Little Granite Creek:
The
helicopter
mobilization
alternative
fully
satisfies practically all of the evaluation criteria.
On the other hand, while the road alternative may not
fully satisfy as many criteria, it does fully or
partially meet all of the USFS/GS objectives.
It
appears that with proper reclamation using techniques
currently available there would be no
long-term
125
effects from the Little Granite road other than
persistent road scars in the last mile below the
wellsite. (emphasis added) [60]
Sharon
Nelson
questioned
the
alternative.
and
of
the
USFS/GS
She
National
Wildlife
selection
of
the
Federation
road
access
commented that the Jackson Hole Area
Gas Lease Stipulation that was attached to each
Oil
of
the
leases involved requires that the lessee "keep to an absolute
minimum
the
travelways"
offer
of
access,
tote
roads
and
other
and to "conduct operations in a manner that will
the
adjacent
number
least
to
the
possible disturbance
leased land."
to
wildlife
(NWF emphasis)
[61]
on
or
Given
these provisions, Nelson concluded:
The DEIS acknowledges that, with added expense, the
Bear Thrust exploratory well can probably be drilled
using only helicopter access.
The language of the
stipulation does not provide for "practicable" or
"economical" or "reasonable" access.
It stipulates
absolutely minimal road building.
If Getty cannot demonstrate ability to obliterate that
last mile...they cannot proceed with their operation
under this term of their lease, except via helicopter.
[62]
That
judgment
decisions
is
Economists
have
trying
maximize
to
simultaneously.
literature
must
hardly
an
be
exercised
making
earth-shattering
long warned against
a
in
decision
the
along
these
observation.
impossibility
several
of
dimensions
The policy analysis and planning evaluation
similarly
discusses
the
difficulty
of
making
social choices when many objectives are desired. [63]
Forest
Service officials acknowledge these shortcomings.
argue
But,
they
that Congress has mandated that they make decisions by
126
considering and weighing numerous factors.
may
[64]
While there
be no precise formula to indicate a correct decision
the end of analysis,
that
their
Forest Service officials feel confident
professional judgment leads
closely approximate
they
argue
who
to
decisions
the public interest." [65]
while
that,
shortcomings,
at
their
that
Furthermore,
decisions
have
might
else could possibly make these
decisions
They are still the agency with forest management
any better?
expertise. [66]
decisions,
Seeing no other way to make these judgmental
agency
systematically and
officials
thoroughly
study each proposal and, considering the information gathered
in this effort,
because
these analytical methods are flawed
subject
to
question
But,
use their judgment to make a decision.
and,
called
into
by those who believe different factors should
have
dispute,
they
are almost
always
moreover,
been considered or weighed differently.
Even Experts Disagree
Not
Service
only
is
there
disagreement
between
environmental organizations about the
and
information
needed
conclusions
to
disagreement
for decisionmaking and
draw
among
each
from
federal
impact
National
the
analysis,
and state
the
Park
Washakie
Service
Wilderness
in
concluded that
type
of
is
also
with
land
While the Forest
concluded that some development could occur
in
Forest
appropriate
there
agencies
management responsibilities and expertise.
Service
the
Wyoming,
this
same
without
[67]
the
activity
"would destroy the wilderness values of this wild, remote and
127
indescribably
scenic
Yellowstone
National
recommended
that
Canyon
area...[and]
will be
Park." [68]
When the
detrimental
USFS
and
exploratory drilling occur in Cache
and Little Granite Creek
outside
Jackson,
to
USGS
Creek
Wyoming,
Roger Williams, EPA Region VIII Administrator, protested:
Exploration is only the first step in what could
become a major developmental process.
While this
action
is
significant in
itself,
the
policy
implications extend beyond just the proposed action.
Important precedents will be set for future oil and
gas EIS's.
The 5-7 miles of road construction needed would
drastically
and
irretrievably alter the
area's
wilderness characteristics.
The Gros Ventre is the
largest
single de facto wilderness
area in the
lower
48 states.
The Gros Ventre as wilderness provides
important watershed protection. It provides important
habitat for not only grizzly bears, but also eagles.
Due to its generally steep slopes and unstable soils,
the Gros Ventre will not fair well from a resource
development standpoint. [69]
Similarly,
Idaho
officials
leasing
and Wyoming
expressed concern to the US Forest
in
the
Palisades
Palisades
Further
wildlife.
Elk,
protection
protect
is
no
State Game and Fish Department
from
area:
Planning
and
"The
remoteness
Area has made it
especially
a
mountain
leasing."
[70]
about
of
the
haven
for
goats,
human disturbance....The best
wildlife is no further leasing...our
further
Service
need
solution
to
recommendation
Nonetheless,
the
Forest
Service's environmental assessment concluded that "there will
be no significant adverse effects...due to oil and gas
issuance."
[71]
The agency
recommended
to the BLM that
lease
the
leases be issued.
Not
only
do "experts" disagree about
128
the
appropriate
conclusions
what
to
draw from environmental analyses
decisions
disagree
needed
should be reached
about
how
before
disagreement
a
decision
between
can
hence
additionally,
much and what type
wise
arose
but,
and
of
be
they
information
made.
the US Forest
One
Service
is
such
and
US
Geological Survey over exploration permits in Wyoming's Cache
Creek
Canyon.
responds
As described in the last
to an APD by preparing a preliminary
assessment
of
the
recommendation
USFS
proposal.
proposal
and
lists
days.
development
this
The
USGS then
The
with
the
conditionned
to
the process takes
revises
plan to conform to USFS
a
USGS.
the agency's concerns
Theoretically,
USFS
information,
how permit approval might be
offset potential impacts.
ten
With
the
environmental
is developed and sent back to the
recommendation
about
chapter,
the
applicant's
recommendations.
But,
the Cache Creek APD took a different course.
Once
the
environmental
National
"precedent
an
preliminary
assessment
Forest
setting
environmental
decision
that
proposed
soil,
were
Supervisor
Reid
recommendation"
impact
Forest
Jackson
the
be
announced
prepared
Reid Jackson
preliminary
EA
USFS
Bridger-Teton
[72] to the USGS
statement
Service's
from
available,
was made on the proposal.
the
Creek,
findings
found
his
-- that
before
a
commented
that
well and access road "cannot be conducted in
the
Cache
regardless of alternative methods, without impacts to
water,
recreation
aesthetics,
and
potential
wilderness,
aspects of the socio-economic
129
wildlife,
structure
of
Teton
County."
as
grounds
call
Jackson
and
that
called
for
Council on
for an EIS under
an
was
the well
as because
well
controversial"
guidelines
[73]
EIS
on
"highly
proving
Environmental
such
these
Quality
noted
that of 200 letters received by then at
Teton
National
the
Bridger-
170 opposed the
Forest headquarters,
He
circumstances.
well.
[74]
Jackson forwarded his conclusions and recommendations to
the
USGS
January,
District
1978.
Office
in
Once back in the USGS' hands,
proposal was uncertain.
Wyoming,
Springs,
Rock
in
the fate of the
The USGS has full responsibility for
making drilling decisions and is not required to abide by the
USFS recommendation.
has
respected
[75] Traditionally,
the Forest Service's
though, the agency
professional
judgment.
The USGS had never denied a drilling permit for environmental
reasons
and had previously prepared only one EIS on an
APD.
[76] As a result, agency officials began what they termed an
"unusual" environmental assessment report (EAR); "unusual" in
the sense that the issues to be addressed
whether
or not to do an EIS on the proposed
precedent-setting. [77]
the
in
it,
especially
drilling,
were
The proposal then faded from view as
USGS conducted its EAR inhouse,
without input from USFS
personnel or the Jackson Hole community.
Almost
a year later,
in December
acting director of the USGS,
W.A.
Radlinski,
John
McGuire was made public.
stressed
1978,
In
this
a letter
from
to USFS Chief
letter,
Radlinski
that the USFS environmental assessment on the Cache
130
Creek
APD of a year earlier was "excellent,"
He argued
his view that an EIS was unnecessary.
at
the
APD
provide
stage
any
would be premature since
information
could
that
decisionmakers make their decision.
that
and
expressed
that an EIS
it
would
help
not
federal
He indicated his belief
an EIS would be more appropriate after exploration
occurred and before development took place.
information
Only then
had
would
regarding the oil and gas resource potential
be
available with which to make an informed decision. [78]
On April 2, 1979, 15 months after Reid Jackson had first
recommended
an EIS,
the
time to discuss
first
afterward,
at
with
the "unusual"
met together
EAR.
for
Immediately
Jackson drafted a letter to the USGS participants
the meeting.
the
USFS and USGS officials
He pinpointed the Forest
analysis
and
questioned
key
Service
concerns
assumptions,
the
estimates of those impacts discussed as well as environmental
impacts overlooked.
The letter concluded that the EAR:
...does not state the environmental impacts as clearly
directly
the
opinion that the impacts from this
well
and
as it might.
We continue
and
attendant
road
of
to remain
rank
developments
wildcat
be
would
EAR
The statements in your
unusually
severe.
regarding mitigation are overly optimistic and tend to
play down the impacts.
The
EAR does not deal with the primary
issues of
the
Cache Creek well which were much broader than just the
Those
impacts resulting from this single test well.
issues which are still very much alive have to do with
the
question
of
the rate and order of oil
and
gas
prospecting and exploration in the Jackson Hole
area,
the
most
e.g.,
is
it
environmentally
necessary
sensitive
to
drill
areas first
what the oil and gas potential
to
determine
of the area is. [79]
In early July, 1979, the USGS released its "unusual" EAR
131
in draft form for public comment.
in late July and early August.
Public hearings were held
The EAR discussed
impacts on water quality,
recreation,
Cache
as
Creek
watershed
impacts.
construction-related
the
It
erosion
and
referred
road
to
the
commenting that
the
also
supply and traffic through residential areas and
County
Commission
feared
this stage of development
test
action."
federal
[80]
environmental problems,
that
The USGS concluded
that
While the
constitute
would
well
that
Cache
a
major
cause
some
most could be mitigated and the site
They did conclude,
reclaimed if drilling were unsuccessful.
however,
that an EIS
and
not
and of itself does
in
that
tourist
the
would be "premature"
well should be drilled.
well
"one
upon
impacts
USGS still held to its contention
The
economy.
at
as
in the
Council was most concerned about impacts upon the local
water
the
and wildlife,
public opposition to the well,
obvious
Town
well
potential
Creek
would
its
lose
status
as
a
benchmark station for water quality. [81]
The
hearings.
once again faded from view after the
issue
But,
on January 17,
1980,
more than two
after NCRA's permit application had been filed,
of
the US Geological
Survey
public
years
the Director
agreed to prepare an EIS
before
making any decisions about the proposed Cache Creek well.
that
time
Creek,
an
another
area adjacent to Cache Creek.
intensified.
community
APD had been filed
and
for
Little
By
Granite
The public outcry
The agency had little choice; the Jackson Hole
several national environmental
132
organizations
had joined the Forest Service
USFS
officials
in demanding
were and are caught
unquestionably difficult situation.
for
making
decisions
public
leasing
and
almost daily,
land
users,
an EIS.
in the middle
of
an
They have responsibility
permitting
recommendations
but there is no agreement
the USFS and other
federal
and
between
and
state
resource managers. These groups disagree about the boundaries
of
analysis in decisionmaking,
be analyzed,
the meaning of Forest Service Manual directives
and the conclusions
of
analysis.
more
the specific alternatives to
explicit
that ought to be drawn from the
findings
Forest Service field officials wish they
formulas to follow
in
had
decisionmaking.
[82]
Since they do not, they compensate by being as systematic and
thorough
as possible
so that all affected
user groups
that their interests have been considered.
can see
As has been shown
above, not all the groups involved are convinced.
The
oil
analysis conducted by the Forest Service in
and gas leasing and permitting
making
an informed decision,
decisions
making
is critical
to
but this analysis cannot alone
provide sufficient information with which to make a decision.
Assumptions
must
be
made
in
bounding
the
reaching
conclusions from the
selecting
alternatives
analysis, and judgment must
analysis.
be
and
exercised
These
in
judgmental
aspects of decisionmaking cannot be subsumed within technical
analysis.
While
the
process
may satisfy
Forest
officials that all pertinent information has been
and
convince
them
that the decision reached
133
is
Service
considered
the
most
appropriate,
affected
groups
process
But,
it does not similarly satisfy or convince other
or individuals.
If the objective
is solely to reach a decision,
if
the objective
decisions
that
are
and
this
then it is successful.
is to be decisive,
accepted
of
that is
supported
to
rather
make
than
immediately contested and undermined, then the process fails.
Inevitably,
what
an
many groups have preconceived notions about
appropriate
decision
analysis is completed.
convince
are
should be
long
before
the
The decisionmaking process does
not
these groups either that their preconceived notions
"wrong" or that the decision
reached
is "right."
Hence
it encourages criticism and, moreover, provides a substantive
basis for this criticism.
opportunity
issues
for
involved
alternatives.
mutual
and
The process does not provide
inquiry to
the merit of a
Affected
better
understand
variety
of
the
the
different
groups are not given an opportunity
to amend, support or reject their early notions.
The process
does not convince these groups that the critical
assumptions
and
value
judgments that in the end dictate which
decision
will
be reached,
that
additional
Hole
community that permitting a well up Cache Creek
are the most acceptable.
analysis would have convinced
is the right thing to do.
lend
It is
The values
the
Jackson
Canyon
at stake simply do not
themselves to the type of technical analysis
on this exploratory drilling proposal.
unlikely
conducted
But, should there be
a mutually acceptable alternative -- in the Cache Creek
or
in the dozens
of other cases in which the Forest
134
case
Service
similarly
finds itself -- the process is not
determine what that alternative might be.
process
is not as informative
structured
to
In this sense, the
as it otherwise
could be.
II. The Process is Divisive
When the National Cooperative Refinery Association filed
an
APD
for
its
leasehold in Cache
Creek
Canyon
outside
Jackson,
Wyoming,
community
was
negative.
However, by the time NCRA withdrew its application
the
cautious
initial
reaction
and concerned but
four years later,
the community was,
against
in Cache Creek.
drilling
exclaimed
during
withdrawing
from
not
the
immediately
literally,
As
one
up-in-arms
local
the revelry following NCRA's
local
resident
announcement
its APD:
We told them we were gonna harass the hell out of
them.
They were warned that there would be vandalism
and all kinds of trouble.
People carry guns up here,
you know.
[83]
The specifics of NCRA's proposal were only part of the reason
the
community's
opposition
grew
to
be
so
adamant;
administrative decisionmaking process provided no option
the
but
to respond as they did.
As
process
it
structured,
is divisive.
encourages
position-taking
the oil and gas leasing
ultimately,
whatever decision is rendered.
and
gas
permitting
It promotes distrust between parties,
adversarial behavior,
and,
and
leads
to
extreme
it ensures opposition
to
While conflict over many oil
proposals is inevitable,
135
it
the process
provides
no
mechanisms
for
anticipating
this conflict
and
resolve the differences among affected parties.
the
trying
to
As a result,
process exacerbates conflict and inhibits
accommodation
of the interests at stake.
The Process Promotes Distrust
The "decisionmaker"
cases
is,
obviously,
in oil and gas leasing or permitting
the federal
land manager.
As a result,
the process is designed to generate information to inform his
decision.
The
applicant
is
relevant information from a lease or
contained in the
official
permit
application.
The
federal official obtains additional information by requesting
it
directly
from the applicant and by
undertaking
on-site
inspections.
The public,
second-hand,
respects,
public
from
the
spokesman,
on the other hand, obtains its information,
the
describing
no
applicant
land
forum
the proposal
for
direct
and the public.
the
federal
heightened,
battle
as
agencies.
In
many
applicant's
and its consequences
and at public meetings.
The
communication
As a result,
opposition over a specific proposal,
on
manager.
federal land manager becomes the
announcements
provides
federal
any
in
process
between
the
hostility
or
by design,
When opposition to
is centered
NCRA's
well
the Jackson Hole Chamber of Commerce framed
one
of
the community
against
the
government:
"people here think they can fight the federal government
they do and they win."
administrative
[84]
decisions
Given this context,
is
136
frequently
built
the
and
distrust
of
into
the
process;
it is difficult
divorce
the
for public groups
and individuals
proposal from the federal officials
to
presenting
it.
When
for
it first became public that NCRA had filed an
Cache
Creek
(residents, town
Commerce)
would
Canyon,
council,
questioned
diminish
the
Jackson
county
the proposal
Hole
commission,
on the
Community
Chamber
grounds
the quality of life in Jackson
APD
that
Hole,
of
it
tax the
town's streets and services and potentially detract from
the
area's exceptional tourism and recreation opportunities. [85]
At
the outset,
Commerce
though,
adopted
a
the governing bodies and Chamber of
"wait-and-see"
stance
despite
the
immediate and vocal opposition of some residents. [86]
The
to
Chamber of Commerce and town officials invited NCRA
Jackson
Hole
community.
profile
leave
And,
to explain their
drilling
to
the
But, NCRA refused. [87] They adopted a very low
throughout
the process,
apparently
preferring
to
all dealings with the community to the Forest Service.
since the process included no forum for bringing
parties together,
posture
was
This
arrogance
Hole
interpreted
prompted
as
and
opposition
to the proposed well.
opposition
by the Chamber of Commerce,
distrust
of
by
NCRA
Moreover,
Jackson
and,
it
hence,
encouraged
the one organization
in town most likely to support the company's
Chamber's
these
NCRA was able to keep its distance.
residents
strong
plans
proposal.
The
executive director attributed the group's eventual
opposition
to
the Cache Creek
137
proposal
to
NCRA's
attitude:
"Refusing to communicate with the Chamber...really
made us mad."
[88]
The Process Promotes Adversarial Behavior
In
addition
encourages
representing
decisionmaking.
As a result,
affected
and
groups
The
behavior.
adversarial
with
charged
to promoting distrust,
the
interest"
both
individuals
is to
argue
how most arguments are framed in
at
that
And,
these
in
their
that is
disputes,
For
cases.
level and in site-specific
the policy
is
the only rational response of
interests coincide with "the public interest."
precisely
also
Service
Forest
public
"the
process
example, over time, opposition to the Cache Creek well became
much more organized than when NCRA first filed its APD.
Jackson
Hole
established
Alliance
in
March
for
Responsible
1979 and it served
Planning
as
an
was
organizing
The Alliance formed a "Blue
force against the well.
The
Ribbon"
committee of influential community members to build community
opposition
to
the well.
with the Sierra Club,
county commission.
Chamber of Commerce,
than
attributes.
Jackson
detract
Their
Hole
and
coalition
town council and
The Alliance's philosophy from the start
was that land use planning
rather
They also encouraged a
from
in Jackson
Hole should
its scenic
and
complement
natural
argument throughout the process was
Northwestern
Wyoming
was
a
system
that
"national
interest area" and, for that reason, should be protected from
incompatible development activities. [89]
138
When
Getty Oil Company proposed drilling an exploratory
the Sierra Club
well in Wyoming's Little Granite Creek area,
opposed
the
oil
The
environmental
that Little Granite Creek was within
argued
organization
plans.
company's
recommended wilderness area and that permitting a well
violated
interest.
the well,
approved
[90]
But,
the
representative
Forest
that it had no authority
arguing
to deny a drilling permit to a leaseholder. [91]
arguing
there
the protective provisions of The Wilderness Act and
thus was not in the public
Service
a
Sierra Club
Phil Hocker protested the agency's
that one of the stipulations
attached
decision,
to the
leases
"a finding that
gave the agency authority to deny drilling:
approval is not in the public interest is adequate to justify
disapproval....The
and
Stipulation
Hole
Jackson
Memorandum requirements supplement the fundamental
reserved
Krug
authority
to the Secretary of Interior to control prospecting
and development
of oil leases
'in the public
[92]
interest'."
Hocker argued that the Forest Service decision had failed
"the
represent
public interest."
As a result,
the
to
Sierra
Club took the Forest Service to court.
In
addition
represented
that
to
arguing
that
their
"the public interest," each group
its adversaries are making nothing but
demands.
For
example,
when
lobbying
position
also
best
alleged
self-interested
against
wilderness
associations argue
that
such actions support "extreme" special interest groups:
"The
designation
U.S.
legislation,
industry
may lock up vast areas of land without knowing how much
139
energy
supply
it gave up in order to keep
pristine condition.
only
of
the
acreage
in
That's a valid basis for decision making
to extremists who insist on their objectives regardless
cost
in terms of energy supply."
[93]
Similarly,
Neal
Williams of the Rocky Mountain Oil and Gas Association argues
that:
We
cannot
lands
for
continue to study and analyze
restrictive
single-interest
our
public
uses
[ie.
wilderness]
when there are so
many
worthwhile
competing uses. We cannot postpone responsible and
environmentally sound mineral exploration...we should
not impede development of our natural resources while
we import timber,
fuel and strategic minerals, to the
detriment of our economy and balance of trade. [94]
Such
arguments are not unique to
industry
representatives.
Michael Scott of The Wilderness Society responds similarly to
industry's allegations:
are
talking about barely one percent
of the lower 48 states.
so
"When we talk about wilderness,
little
land?
people...who
philosophy
develop."
are
that
I
mass
How much oil and gas can be found
think
personally
there
of the total land
we
we
are
offended
are areas they
[95]
140
simply
as
can't
dealing
a
go
in
with
matter
of
into
and
The Process Encouraes
Not
Strategic Behavior
only does the process deepen the chasm between
traditional
adversaries,
behave strategically.
the
it also encourages these groups to
Because the process puts
potentially
affected groups other than the applicant on the defensive and
prompts
means
distrust,
it
encourages all groups to
of protecting their interests (ie.
seek
it encourages them
to seek other avenues through which their power to
the final outcome might
influence
be greater).
When the USFS and USGS decided that a no-drill
for
Cache
Creek was beyond their statutory
decision
authority,
Jackson
Hole community concluded that their
not
adequately addressed in the administrative
be
other
concerns
the
could
process.
The Jackson Hole Alliance came to the conclusion that the EIS
would
be
"little
project...There
reached
this
more
than
a
justification
for
the
is no administrative remedy now that we have
stage
of
development."
The
Alliance
was
"appalled that leasing had occurred without public input" and
now
made
that
an APD is filed "the decisions have
already
been
and there is nothing in the administrative process that
the community can do about it."
In their
mind,
involvement
in the administrative process had become "meaningless." [96]
When
community
the
Congress.
Congressional
were
process
failed
moved into a forum where they felt they
influence:
They
administrative
Their
approach
was
them,
the
had
more
to
encourage
action to exchange or buy back NCRA's
convinced that they would be
141
successful.
leases.
Ralph
McMullen, the Chamber's executive director, explained why:
We have people who know what to do and whom to
call...The people who move here often are powerful,
wealthy and influential.
The locals know where to go
and our tentacles
reach far.
[97]
McMullen was convinced that the Congressional delegation would
be much more responsive to the Chamber's concerns than was the
USFS or USGS:
The
Forest
Service
bureaucracies
and
electorate...but
and
Geological
Survey
so they are not responsive
the
Congressional
the
delegation
is
republican and so are most of the Chamber's
they listen to us. [98]
The
Chamber
chance
to
and
the Alliance both felt they had
influence
decisionmaking
through
are
to
members...
a
better
Congressional
channels than through administrative channels.
This
response
Jackson
the
strategy
was encouraged by a seemingly
from their Congressional
Hole
delegation.
favorable
Given
the
community's united and forceful opposition
Cache Creek well,
Wyoming's three-member
delegation [99] gave its support to the
to
Congressional
community.
Senator
Alan Simpson reported that "all of us have grave reservations
about
drilling
in that area.
I haven't
found anyone
in the
county who favors this, so we will pursue everything we can."
[100] Senator Malcolm Wallop declared that "we can
agree
find
Cache
that it ought not happen.
any means
Creek."
available
[101]
generally
The delegation will try to
to it to prohibit
the
in
Jackson
Hole
residents that they "don't believe oil and gas drilling
will
ever be a reality
encouraging
The delegation assured
drilling
in Cache Creek Canyon."
response,
there
142
[102]
With such an
seemed little reason
for
the
to pursue the administrative process.
community
When opposition to drilling in Cache Creek Canyon flowed
over to Getty Oil's proposed Little Granite Creek well, Getty
officials
tried
and
itself
community
to
the
groups
reaction.
understand
They
were
trust
differed
accessible
open,
It
help
and
and
They
acknowledged the environmental concerns at stake.
had
themselves to be trustworthy and responsible in other
proven
interactions
with
the
Bridger-Teton
Forest
National
environmental
groups in another drilling project
Fall
Creek.
Moreover,
much
different
from
to compromise
willing
one.
NCRA's questionable
in order to drill.
nearby
prospect,
Getty had an "excellent"
were
They
[103]
not be environmentally disastrous as the
contended
in
and
assured the town that its Little Granite proposal
Getty
would
to
community
Getty's attitude could not have
NCRA's.
from
this
environmental
Getty's proposal.
more
offset
presented
immediately
residents
to
and would
be a financial
Club
Sierra
area.
bonus for the
It
reported that seismic data and geophysical analyses indicated
a
44,900
acre
anticline
that could
billion worth of oil and gas:
billion
300
cubic
potentially
50 million
feet of natural gas.
barrels
The
were
County
would receive one-third of
generated.
[104]
$1
of oil
or
State
receive $375 million if Getty's projections proved
Teton
hold
accurate.
whatever
revenues
Getty assured the town that it would
take whatever steps necessary to protect the large elk
as
well
as
would
the other wildlife that Little
143
Granite
herds
Canyon
supports as calving and grazing grounds and migration routes.
They
minimized
sulfide
the
("sour
probability
gas")
and promised
county's or town's cultural,
They
encountering
minimal
or the highways
quieter
than
generators
and
representative
usual
hydrogen
impact
on
the
social or educational services.
assured that no drill rigs would ever be
Jackson
be
of
visible
into town and that operations
because
diesel-electric
Getty
would
engines.
use
would
muffled
[105]
emphasized the company's record:
from
Getty's
"Getty has
demonstrated, in Teton County and elsewhere, that drilling in
sensitive
environments
can be
accomplished
successfully."
[106]
Getty
would
hoped
that its strong
encourage
a
public
constructive
relations
dialogue
effort
with
the
environmentalists, the Jackson Hole community and the USFS/GS
team.
They
concerns
their
and
hoped that they would be able to
still be able to explore and
prospect.
seemed
[107]
This dialogue never
address
perhaps
most
develop
evolved.
There
to be little incentive for the Sierra Club or Jackson
Hole community
to negotiate;
a Congressional
solution
to the
whole problem seemed imminent.
The
in
drilling
a proposed wilderness area because the drilling would
precedent
oil
Sierra Club was not willing to concede to
and
seemed
mitigate
setting and make it difficult to
prevent
gas exploration in other wilderness
little
reason for them to negotiate
impacts if,
in fact,
144
further
areas.
with
a no-development
be
There
Getty
option
to
still
existed.
[108]
While
congressional
guaranteed, it seemed likely.
action
was
not
In November 1981, Jackson Hole
Alliance Director, Story Clark felt confident that "the gears
for a solution
are already
in the works."
In late February 1982,
the
Wyoming
this optimism was shattered when
Congressional
delegation
wilderness legislation to Congress.
Bill
explicitly
[109]
introduced
The Wyoming
its
Wilderness
removed all designated wilderness areas
Wyoming
from any oil and gas or other mining
activites.
firmly
set the boundaries
area.
of each wilderness
in
It
To
the
shock of the Sierra Club, the Wilderness Society, the Wyoming
Wilderness
Association,
Jackson
Hole
Alliance
and
many
Jackson residents, the bill removed Little Granite Creek from
the Gros Ventre Wilderness,
theoretically paving the way for
Getty's well. [110]
The Congressional
to rest,
to
though.
delegation's
bill hardly
By that time the dispute
put the issue
had been allowed
build to the point that positions had become
Hence,
the
Jackson
Hole Alliance,
environmental organization,
Sierra Club
entrenched.
and
other
rather than responding favorably
to
Getty's advances,
began looking for other means by which
to
oppose the well.
And,
vulnerable;
there
groups
influence
can
as they found,
the
process
is
are many avenues by which individuals and
decisions in the
making
decisions that do not accommodate their concerns.
145
and
oppose
III. The Process
In
is Not Decisive
1962,
Commission
prevail
the
Outdoor
commented
in
the
on
midst
Recreation
the Forest
of
Resources
Service's
inevitable
Review
ability
to
over
its
conflict
decisions:
The Forest Service does not stand alone in the face of
pressures from one direction. One Chief of the Forest
Service is alleged to have said, "I am supported by
the pressures which surround me."
With skillful
manipulation, the various clientele groups tend to
cancel out each others' efforts.
To the extent that
this occurs,
the administrator is given greater
discretion to make decisions which he considers to be
in the public
But,
interest.
by 1982 this perspective
Service
[111]
no longer applied.
The Forest
might have discretion to make decisions deemed to be
in "the public
supported
1982,
interest,"
but these decisions
are no
by the conflicting pressures acting upon
decisions
not
deemed
appropriate
can
longer
it.
be
In
opposed
effectively; they are not decisive.
Theoretically,
a matter;
or
"a
as Webster
defines
would
this definition,
so
And,
because
But,
is a "conclusion"
while Forest
certainly prefer that their
frequently
great,
accommodated
should be the final word on
it, a decision
report of a conclusion."
officials
are
a "decision"
groups
they do not.
whose
concerns
decisions
Because
have
by a decision inevitably oppose that
the
decisionmaking
process
Service
is
the stakes
not
against
groups have grounds on which to make strong
a decision.
been
decision.
unable
conclusively determine which outcome is the appropriate
these
fit
to
one,
arguments
If an oil and gas leasing or permitting
146
decision
is not influenced in the making,
there remain many
different ways to potentially undo that decision once made.
Consider,
Marshall
for example,
Wilderness
a case involving Montana's
Area.
After
decisions
the fate of the permit
for
Bob Marshall
the
four
years
and
and lease applications
are still up in the
air.
Bob
four
filed
The
first
decision was made when the Region I Regional Forester decided
to
deny
a
decision
Service
prospecting
permit
for
the
area.
But,
was appealed by the permit applicant to the
Chief.
The
Chief
disagreed
with
the
this
Forest
Regional
Forester's assessment and sent the application back to him to
be reconsidered.
[112]
A second decision was then made when
the Regional Forester reconsidered his original decision
again
ruled against
again appealed.
the applicant.
[113]
and
But, the applicant
In the meantime, environmentalists concerned
about the Bob Marshall's wilderness characteristics turned to
Congress.
A third decision was made when the House Committee
on Interior and Insular Affairs evoked an emergency provision
of
the
Federal
withdraw
[114]
once again,
States
Foundation
the
Act of
1976
the wilderness area from the mineral leasing
But,
Mountain
Land Policy and Management
Legal
the dispute
Foundation
was not
and
the
sued the Congressional committee,
committee's
The
Pacific
Legal
alleging
that
The
fourth decision was made when the federal judge in this
case
only
that
was
laws.
[115]
ruled
action
resolved.
to
unconstitutional.
the committee's action was
so long as the secretary
147
constitutional,
of the interior
set
the
but
time
limit
of the withdrawal.
responsibility
for
the
[116]
The judge thereby forwarded
"final"
permit
decision
to
the
secretary.
After four decisions and three decisionmakers,
of oil and gas exploration
yet
to
be "decided."
Interior
James
forestalled
if
the
court.
His
decision
of
has
Areas until September,
judicially
His
decision
1983. [117]
will
At that
The final decision
Bob
making
inevitably
opposed by either the applicant or
the
leasing
has not legislatively protected the
decision.
has
been
Watt will become the fourth decisionmaker,
fifth
groups.
The ball is now in Secretary
Watt's
Congress
Marshall,
Wilderness
by an agreement with Congress affecting
in all Wilderness
time,
in the Bob Marshall
the fate
be
environmental
and the final decisionmaker
have
yet to be identified.
No decision is immune from opposition.
as
formal
policies
influencing
policies
are
opposed.
in the making,
If
Informal as well
unsuccessful
the policies
will
opposed when implemented.
Opposition traditionally
existing
and
administrative
judicial
room
for an individual
success
opponents
is
or group's
creative
be
follows
channels.
opponents are hardly limited to these avenues;
at
But,
there is much
instincts.
If
not achieved in the administrative process
then
may turn to the courts,
Congress,
the
state
or
other governing bodies; guerrilla tactics cannot be ruled out
when
conflict
differences
is
permitted to
extremes.
If
are not resolved when prospecting decisions
are
148
develop
to
being
and
made then the conflict flows over to leasing decisions
then
on
licensing
to
permitting
decisions.
decisions
and
In the end, however,
eventually
to
just as in the Bob
Marshall case, no mechanism is available to resolve disputes;
no
process
exists to accommodate the
interests
at
stake.
Consistent
with the long-held land management paradigm,
all
the
in
the
steps
the
process
are
designed
to
professional
land
escalate
the parties jockey for position
as
manager's decision.
inform
Disputes fester
in
and
subsequent
rounds of appeal.
The Conservation of Conflict
Reviewing the Palisades leasing case is a tedious
Each
stage
But,
because
is redundant;
organizations
the issues argued
are
the differences between several
and
the
task.
same.
environmental
the Forest Service were not addressed
--
because the environmental interests were not accommodated
to
their
satisfaction
proceeded
merely
disputes
through a succession
natural
persisted.
of decisions
served as transfer points,
one forum to another.
a
-- the
The
that in the
case
end
as the dispute moved from
The process proceeds as if governed by
law of "conservation
of conflict:"
the
level
of
conflict either remains stable or increases as decisions move
from
one
phase to the next.
Seldom are attempts
resolve conflicts and hence defy this "natural" law.
149
made
to
Policymaking:
The FPA Stipulation and Guidelines Dispute
Because
of the intensifying
interest
in the oil and gas
the Forest Service
potential of the Western Overthrust Belt,
concluded in RARE II that, even though the Palisades area had
no decision could be made about
its
about
its
area
was
nonwilderness
but
instead placed into a third "further planning" category.
In
high
wilderness value,
status until more information was obtained
final
oil
and
classified
the
Final
evaluation
gas
resources.
as
neither
Environmental
Thus,
Palisades
the
wilderness
nor
on its RARE II
Statement
the US Forest Service
process
wilderness
acknowledged
its
dilemma:
Unless there is additional exploration for oil and gas
resources permitted in many areas allocated to further
wilderness-nonwilderness
planning,
subsequent
decisions will have to rely on data not much better
than currently exists.
Exploration
potential
management
areas.
For
the
by
or
reasons,
oil
where
drilling
it)
to determine
in reaching
oil
gas
in land
allocate
roadless
and
gas
adequate
will be considered
and
conclusions
project plans that
above
(including
requires
drilling
is essential
exploration
exploration
an integral
part
of
the further planning process. [118]
In justifying its allocation decision in this way,
was
assuming
that
stipulations
would
the
protect
USFS
surface
resources against environmental impacts should exploration or
development be proposed.
Forest
Service
Additionally, they assumed that the
retains authority at later
decision
points
(ie. permitting and licensing) to control whatever activities
may be proposed.
But,
environmental groups questioned
150
both
assumptions and, therefore, the decisions reached.
The
first
officials
be
task the Forest
Service
Washington
Office
undertook was developing a special stipulation
attached to all leases issued in Further Planning
to
Areas.
The national environmental organizations closely followed the
development of the FPA lease stipulation and FPA leasing
and
management
that
the
protect
the
guidelines.
stipulation
area's
and
They
wanted
to
ensure
guidelines were sufficient to
wilderness
character should oil and gas
exploration
and development ever be proposed. [119] While the Washington
Office
distributed
stipulation
them,
and
these
Washington
of
guidelines for
groups
"pro forma."
drafts
the
agency's
comment
before
proposed
finalizing
felt that their involvement was
merely
They did not believe that the US Forest Service
Office
ever
took
their
criticisms
and
recommendations seriously. [120]
Sierra
stipulation
their
own
maintenance
Club representatives criticized the proposed FPA
on
several grounds,
version
of
that
wilderness
decisions were being made.
they
going as far
felt
values
would
while
as
better
final
drafting
assure
allocation
They complained about the lack of
public comment or discussion of the stipulation before it was
promulgated
follow
and participate in the process.
unanswered
matter.
Sierra
and expressed frustration at their inability
letters
They
Club
to
They cited
the USFS Washington
Office
to
several
on
the
urged the Forest Service "to either adopt the
proposed revision,
151
or at least to
initiate
a
consultation
procedure
leading
to
major
changes
in
the
oil/gas administration of Further Planning Areas." [121] More
specifically,
Bruce
Hamilton criticized the requirement
only an environmental
assessment
that it was a contradiction
and
"would
Planning
completely
Process."
changes
in
the
criticisms.
stipulation
designed.
FPA
Agency
was
environmental
of explicit
But,
RARE II FES intention
officials
But,
in
the
Further
Service made no
response
to
were confident that
and
by
of
the US Forest
Stipulation
adequate
[123]
(EA) and not an EIS, stating
void the integrity
[122]
of
enforceable
failing
groups' contentions,
to
as
these
the
FPA
originally
respond
to
the
the agency ensured
that
the dispute would reappear when it came time to implement the
stipulations.
The
FPA
Service Manual
resources
Stipulation was supplemented with
(FSM) guidelines
in FPAs.
for managing
new
Forest
the oil and
These guidelines were also developed in
the USFS Washington Office in consultation with those
Service
was
Regions facing oil and gas pressures.
held
in Washington in April 1980 to obtain
One
Forest
meeting
input
environmentalists and energy industry representatives.
With
areas,
respect
to
gas
specific management
of
further
from
[124]
planning
the guidelines emphasized that "a primary reason
for
allocating an area to further planning was the need to gather
additional data on which to base a wilderness, non-wilderness
decision.
Therefore,
mineral
exploration is considered an
integral part of the further planning process but it must
152
be
conducted
or
can
in such a way that a wilderness option is retained
be
Service's
by
restored
confidence
stipulations
reclamation."
n
in
the
125]
ability
The
of
to guard against surface resource
Forest
protective
impacts
was
clear:
Controls available in regulations and lease terms are
generally sufficient to avoid environmental problems
and protect wilderness values. [126]
In
addition,
Forest Service felt
the
assured
that
there
remained other decision points where they could control lease
activities and perhaps rectify leasing errors:
While
prelease
the
general
environmental
issues and concerns
analysis
treats
of
(such as preservation
and
the wilderness option) that would seriously
necessarily be affected by lease operations, the
operations stage is the time to address most concerns.
[127]
But, the national environmental organizations monitoring
the development of these guidelines questionned the US Forest
Service's
assumptions
that
lease
stipulations
would
adequately protect surface resource values and that the
possessed
control
sufficient
activities
characteristics.
USFS
authority at later decision points
that proved
[128]
threatening
to
to
wilderness
In early September, 1980, USFS Chief
R. Max Peterson distributed a draft of the FPA guidelines for
comment from those participating in the April meeting.
Bruce
Hamilton,
Representative,
Sierra Club Northern Great Plains
immediately
responded
to
[129]
Regional
the
draft
guidelines, expressing concern that the issues raised earlier
by
the
Sierra Club and other environmental groups
153
had
not
been "adequately addressed."
We
adequate
that
that
is
convinced (1) that the FPA stipulation
remain
not
He stressed that:
to preserve
the wilderness
(2)
option;
highly environmentally sensitive zones in FPAs
can't be directionally drilled should not be
(3)
leased;
that
leasing
the
prejudices
land
allocation decision; and (4) that the Forest Service
does not have a workable plan for making a timely
unbiased land allocation decision in FPAs that are
leased.
[130]
Hamilton
questionned
national
forest
potential,
the
logic behind further
lands to determine
their
leasing
energy
of
resource
especially when a considerable amount of land was
already leased. [131]
On December 31,
USFS
Chief
R.
Area guidelines.
of FPAs,
was
1980, a policy "decision" was made when
Max Peterson finalized the Further
But, the debate about the proper management
especially
not put to rest.
with respect to oil and gas
The environmental
groups
question
both the protection contained in
and
ability
the
these
of the Forest Service
stipulations.
They
saw
guidelines as a "fait accompli."
in
Planning
no
continued
the
to
reason
activities,
to
stipulations
legally
to
enforce
accept
the
They pursued their concerns
the Palisades leasing decision,
again raising
the
same
issues.
Policy Implementation:
The Palisades Leasing Decision
When
Further
defer
lease
Planning
any
evaluations
applications were filed for
Area,
decision
were
the
the Region II Forester
until
after
completed and its
154
the
area's
status
Palisades
decided
to
wilderness
decided.
[132]
But, deferring the leasing decisions in this manner was not a
costless
The Wilderness Act's
With
option.
outstanding
leases
repercussions
for
Legal
States
interest group,
decision.
the oil and gas
(MSLF),
Foundation
industry.
a
sued the Forest Service
Mountain
The
industry
non-profit
to force it to make a
[133]
filed suit in Wyoming District Court arguing
MSLF
of the lands from the operation
a withdrawal
Act of 1920,
Leasing
Mineral
to
withdrawal
such
for
of the
submitting
without
Congress
that
constituted:
the USFS inaction on the lease applications
(1)
severe
potentially
have
could
31,
inaction on the
leasing deadline rapidly approaching,
1983,
December
approval
required by the Federal Land Policy and
as
Management
Act; and,
(2)
a
regulation
or
rule
of either
or
of
both
the
Departments of Interior and Agriculture which was
not promulgated as required by the Administrative
Procedure
MSLF
would
Act.
be "irreparably
public
as well as the general
that its members
claimed
development
[134]
injured by the delay or prevention
of energy resources" in the Palisades FPA.
of
MSLF
charged that the USFS' inaction would have "serious secondary
impacts,
shortages
such
as increased
an
and
unemployment,
increasing
balance
possible
trade
of
energy
deficit,
which...affects the public's individual rights including
right of economic
USFS
and
choice."
[135]
of the Interior
Department
(DOI)
defended themselves in court by claiming that,
had
"proceeded
slowly"
the
on
these
155
leases,
attorneys
although they
they
had
not
specifically withdrawn the lands in question.
stressed
that the Forest Service
statutory
of
mandates,
1964.
had been
Rather,
following
they
other
specifically that of The Wilderness Act
The agency representatives
expressed
confidence
that by deferring leasing decisions they would be better able
to
the appropriate decision at a later time when
make
information about the area's resources was
available.
more
They
that there were simply too many unknowns at that time
argued
to confidently
But,
make a decision.
on October 10,
[136]
1980, Wyoming District Court Judge
Clarence Brimmer ruled:
We cannot allow the
inaction
what
they
administrative order.
not
Defendants to accomplish by
could not
do
by
formal
By our decision herein, we do
purport to require the Secretary
to
accept,
outstanding
the
reject,
or
even
of the
take
oil and gas leases.
Interior
action
We merely
on
hold
action taken by the Secretary of Agriculture,
failing
falls
U.S.C.
to act on the outstanding
within
lease
1702(j) and the Secretary
under
of
43
Interior
is required to notify Congress of such withdrawal
institute action on the applications. [137]
With
in
applications
the definition of withdrawal
Section
the
that
or
this ruling,
the Forest Service was forced to make the
leasing decisions,
regardless of the potential impact on the
area's wilderness characteristics.
The
MSLF
case
fueled
the
dispute
over
the
management of potential wilderness areas but did not
moved the Forest
it.
It
into
the fire."
how to decide,
and
Service
It provided
proper
resolve
"out of the frying pan and
the agency with no guidance
on
given the competing claims of the Sierra Club
the Mountain States Legal Foundation.
them to make a decision.
156
But,
it
forced
Because
with
the
setting.
first
FPAs
leasing decisions following Judge
Brimmer's
any decision reached in the case would be
precedent
impending
ruling,
Palisades area was one of the
Now
both national environmental organizations and
the oil and gas industry associations were watching the
response closely.
Wyoming
the
Wilderness
agency's
The Wilderness Society,
and
Association
the
Council closely monitored all USFS
Environmental
affecting
The Sierra Club,
the Palisades
Idaho
activities
in
the
and
had
They had participated
FPA.
USFS
wilderness evaluations from the beginning
long
advocated
the
Palisades.
They
had been pleased when RARE I concluded in a
wilderness
recommendation
wilderness
designation for
for the Palisades;
they were
when
outraged
II resulted in a further planning status because of the
RARE
oil and gas potential.
area's
Their feeling was
the
that
area's exceptional wilderness qualities stood for themselves;
the
area should be designated wilderness regardless of
what
energy resources, if any, were located beneath it. [138]
In June,
1981, the Regional
Forester
that the Palisades
the
Sierra Club filed an appeal of the
decision
to recommend
Regional
oil and gas leasing
Sierra
"Statement
Club
of
Reasons in Support
of
1981,
Forester's
Palisades.
in the
The appeal immediately went before the USFS Chief.
50-page
to the
On July 7,
leases be issued.
BLM
recommended
In their
Appeal"
outlined and defended their (by this time
the
all-
too-familiar) contention that:
Leasing
in the Palisades,
157
as permitted
by the Regional
Forester's decision,
will not preserve the wilderness
option
for the area.
The decision commits the lands
to non-wilderness
uses,
and will result in damage to
the wilderness qualities of the Further Planning Area.
The
decision
does not meet the
criteria
for
environmental protection established by the
RARE
program. Nor does the decision assure that the Forest
Service will obtain data on oil and gas resources
which RARE II indicates is necessary to carry out land
management planning. [139]
The
Sierra Club argued that the Forest Service decision
did
not satisfy the agency's own objectives in decisionmaking; it
neither
contributed
information
base
to the agency's oil
with
which
to
and
make
gas
a
resource
wilderness-
nonwilderness
decision nor preserved the wilderness
Consequently,
the environmental organization sought to prove
that
option.
not only was the decisionmaking process flawed in
it did not comply with
decision
itself
objectives
of
clearly
resource
wilderness values.
Forester's
NEPA's provisions,
did
not
but also that the
satisfy
mapping in FPAs
the
while
USFS'
own
maintaining
The Sierra Club feared that the Regional
decision was a "heads they win,
proposition:
that
tails
we
lose"
Regardless of the actual oil and gas potential
of the Palisades, the wilderness option would likely be lost.
[140]
The
Regional
Forester responded to the
Statement-of-Reasons
decision.
clearly
Further,
He
point-by-point
viewed
justified
the
Forest Service
he emphasized
that his decision
Forest Service,
Club's
supporting
decision
by the Forest Service Manual
Palisades to non-wilderness uses,
the
in
Sierra
his
to
be
guidelines.
did not commit
the
but rather that it allowed
while protecting wilderness values with
158
to obtain information about oil and
clear stipulations,
acknowledged
these
making
decision
the
in
resources
Forester
Regional
that there were many uncertainties involved
decisions but expressed confidence that
points
provide
would
The
Palisades.
gas
specific
involving
better
and
later
proposals
development
information
in
less
involve
[141]
uncertainty.
The Sierra Club,
in turn,
responded point-by-point
to
the Regional Forester's response to their original statement,
again disagreeing with the USFS' assertions.
to
question
possessed
and
or
not the
and
development
Forester was asserting.
Service
they had never exercised.
It was an
the
administrative
The Sierra Club
was not a major federal action requiring an EIS.
waiting
before
oil
as
activities
one
questioned
Regional Forester's assertion that the leasing
that
actually
the Forest Service believed it possessed but
capability
that
Forest
authority at later decision points to control
exploration
gas
Regional
the
whether
They continued
doing
understanding
for an Application
an
and
EIS
an
was
dealing
decision
They argued
for a Permit to Drill
"incremental"
(APD)
to
approach
with the issues and that "one
of
the primary purposes of NEPA was the elimination of just such
bits and pieces decisionmaking.
a proposal
as a whole, before
NEPA [required] a review of
commitments
of resources
[were]
made to it." [142]
After consideri.ng the arguments made by the Sierra
and other affected
parties
in appeals documents
159
Club
as well as at
an
oral presentation held in Washington,
Peterson
reaffirmed
December
31,
recommendation
The
1980,
Regional
and
Forester's
forwarded
on to the BLM.
the
through
USFS
Chief
decision
Forest
making
Service
the
1981,
the Interior
Once
Secretary of the
Interior James Watt personally intercepted the appeal
May 28,
same
the BLM decisionmaking hierarchy.
though, their efforts were in vain.
it went before
on
[143]
Sierra Club continued to appeal,
arguments,
again,
the
D.C.,
Board of Land Appeals.
before
[144]
On
after considering the Sierra Club's complaint
and the Forest Service response, Watt decided that the Forest
Service's
recommendation
was
appropriate
and
issued
the
leases.
The debate was not put to rest. While final authority to
make
the
decisions under the mineral leasing laws does rest with
Secretary
of the Interior,
his decisions
are
just
susceptible to appeal as those of his subordinates.
as
Two days
after Secretary Watt made his decision to issue the Palisades
leases,
the Sierra Club filed suit in Washington
District Court against R.
Block
(Secretary
of
Robert
Burford
(BLM
Not satisfied that their concerns
had been addressed by the Forest Service and BLM/DOI
processes,
U.S.
Max Peterson (USFS Chief), John R.
Agriculture),
Director) and James Watt.
D.C.
appeals
and still convinced that their questions deserved
attention, the Sierra Club alleged the failure of the various
USFS,
BLM
and
DOI officials
to fulfill
their
obligations
under the National Environmental Policy Act. [145]
160
In
the
Injunction"
expressed
Club
conclusion
Sierra
a
Preliminary
Club attorneys highlighted
and well-known concerns.
questionned
the
Service's decision.
Service
to their "Motion for
assumptions
Once again,
their
long-
Once again,
the
Sierra
supporting
the
Forest
it doubted that the Forest
had the administrative capability
to
significantly
control oil and gas activities once leases were issued.
saw
no
link between
the RARE II FES objective
of
They
obtaining
further information about an area's oil and gas potential and
this
Forest
called
would
Service decision.
for a full EIS,
make
apparent
Finally,
once
hoping that more extensive
the consequences of the
to the Forest
they
Service.
leasing
again
analysis
decision
more
[146]
With the Sierra Club's lawsuit, the issues were moved to
a
new arena,
once again to be debated and judged.
Now the
decisionmaker, instead of being the USFS Regional Forester or
Chief
or
the
Secretary
district court judge.
of
the
Interior,
was
a
federal
The arguments presented by each group
were the same; only the person listening was different.
On March 31,
Judge Aubrey E.
authority
to
1982,
Washington D.C. U.S. District Court
Robinson ruled that the USFS did possess the
enforce lease stipulations,
even
when
these
stipulations may make exploration or development impossible:
The lessees may legally obligate themselves to lease
conditions that may result in the inability to explore
or develop;
take. [147]
More
than
six
that is knowing
years
after
161
risk the lessees wish
having
been
filed,
to
the
Palisades
leases were issued.
case
made
was
Robinson's
Service
The final "decision" in
by a federal district
court
judge.
Judge
The
Forest
ruling gave a little to each party.
not
was
required
to do an EIS
its
because
lease
stipulations could effectively negate any development on
leaseholds.
APD,
Should one of the Palisades
the
lessees
the
now file an
the judge's ruling left the door open for environmental
groups
to
the
question
stipulations.
enforcement
the
of
While the leasing dispute seems resolved,
issues
underlying
actual
about
in
exploration
the
forest
national
roadless areas remain.
Where There's A Will There's A Way
The
oil
vulnerable
the
and gas decisionmaking
administrative appeals process,
judicial
revieVw.
though.
While
is
extremely
ending
with
Not all cases are so neat and predictable,
avenues are
administrative
seldom
other paths of least resistance
pursue
influence
is
The Palisades case followed
to delay and attack.
customary
groups
process
Consider the Little
greatest.
ignored,
where
their
Granite
Creek
case:
On
Friday,
1982,
the US Minerals
(MMS) announced its approval of Getty Oil
Service
Little
2,
April
Granite
organizations
Creek
announced
decision.
Phil
decision
"amazing
opposition
APD.
Hocker
and
Within
their
of
the
days,
intention
Sierra
arrogant" given
and testimony against the well.
162
Company's
environmental
to
Club
the
Management
appeal
the
labeled
the
strong
[148]
public
A Wyoming
Wilderness Association spokesman called the decision "a
mockery
of
the
administrative
democratic
appeals
process."
fail,
Earth
real
the
Should
[149]
a
First!,
radical
promised
environmental organization with nationwide support,
civil disobedience in order to prevent Getty from drilling in
Little
announced
that
spokesman Dave Foreman
Earth First!
Granite Creek.
"we're
prepared
to put
our
line...we aren't going to rule out anything."
The
local
Jackson
Hole
become
yet
well
Wyoming
The State of Wyoming
had not
move
In a surprise
Governor Herschler voiced his opposition
May,
early
to
in the dis pute.
involved
the
[150]
appealed
groups
governor Ed Herschler for help.
on
life
in
to
the
and appealed to Secretary of the Interior James Watt to
suspend
"either deny the drilling application or temporarily
the
approval
to
expressed
outfitters,
action."
by
him
interest
[151]
Jackson
He
local
elected
officials
wildlife
resources and the area's
and tourism
fishing
"less
concerns"
sportsmen,
representatives
negative
"potential
industries."
"valid
residents,
Hole
groups,
about
cited
recreation,
[152]
and
impacts
hunting
He felt that
on
and
other,
sensitive," lands should be explored before areas like
Little Granite Creek.
He argued that the federal reviews had
not exhausted all possible alternatives. [153]
In
mid-May,
the
US
MMS
regional
director
in
Rock
Springs, Wyoming, signed Getty's drilling permit into effect.
A
30-day
appeal period followed the
could proceed with its plans. [154]
163
signing
before
Getty
The Sierra Club promised
to
use
"all legal means...to
Getty's
begin
bulldozers."
constructing
they
still
[155]
protect
the Gros
Ventre
Getty announced that
the access road in late
it
June,
expected continuing opposition to
from
would
although
their
plans.
[156]
Less than a month
the
MMS
appeal
with the DOI Interior
[157]
appeals:
one
Forester
Association,
and 62 prominent
appeal
with
appeals
Jackson
the
Board of Land Appeals
with the US MMS
the Jackson Hole Alliance,
Outfitters
The Sierra Club
appeals
of
filed
an
(IBLA) in
The Wyoming Wilderness Association
with the USFS Regional
but
four administrative
action had been filed.
Washington.
two
later,
filed
in Rock Springs and
in Ogden,
Utah.
one
[158]
And,
in concert with the Jackson
Hole
Jackson Hole League of Women Voters
Hole citizens,
US MMS Rock
filed a class-action
Springs
office.
[159]
The
questioned several different aspects of the decision
all
focused
on
the
irreversible
environmental
consequences
of Getty's proposed 6.5 mile access
road
the wellsite.
Other issues
the area's
wilderness
values,
helicopter
access
procedures
public
in the appeals
opinion against
alternative,
used in reaching
included
the
and various
the decision.
well,
into
the
administrative
[160]
Governor Herschler continued his opposition to the well.
He filed an additional
administrative
appeal,
Wyoming
State Oil and Gas Conservation
of which
he is chairman
-- to review
and asked
Commission
the proposal
(OGCC)
--
in order to
determine whether state jurisdiction was possible. [161]
164
the
The
Commission
immediately
began
holding
hearings
under
"Commission Rule 236." This rule gives the OGCC responsiblity
for
protecting
the state's lands and waters from
and environmental
and
degradation
development.
determine
place
[162]
whether
due to oil and gas
pollution
exploration
The purpose of the hearings
the state should prohibit
any
was
to
drilling,
specific restrictions on development or allow Getty to
proceed
unrestricted.
provided
Again,
cause for concern.
the
proposed
access
The Commission members
road
feared
that erosion from the road would pollute Little Granite Creek
which flows into the Hoback River and,
Snake
River,
Wyoming
a proposed wild and scenic river.
State
Game and Fish Department
Commission
order
access
prevent
to
jurisdiction
finally,
under
possibility.
[164]
concluded
authority
to
hearings.
that the Commission
were
that
than
road
state
fire
from
"probably
have
deny Getty a permit and thus he continued
the
[165]
to
Getty's
well was
not
limited
at its construction site where
to
surveying
$56,000
stakes
uprooted and expensive surveying equipment thrown
the creek.
[166]
the
Getty and a
testing firm in the area incurred more than
damage
Little
the
OGCC Supervisor Don
administrative appeals and State OGCC hearings.
in
The
does"
Opposition
seismic
[163]
While
Rule 236 came under immediate
Getty's attorneys and federal officials,
Basko
the
requested
Getty to use helicopter rather
this
enters
into
On July 4, Earth First! held a rally at the
Granite Creek trailhead,
165
protesting Getty's proposed
well.
400 people attended the rally and 100 of those pledged
to blockade Getty's access road should the oil company
road
construction.
Monkey
Wrench
Author
Edward
subvert....Earth first,
and J. Paul Getty
audience
to
Abbey (whose book
Gang inspired the founding of
implored the gathering to "oppose,
"please
Earth
The
First!)
resist and, if necessary,
grizzly bears second,
last!"
begin
In concluding,
people
third
Abbey joked with the
stop sending me
those
damned,
dirty
survey stakes!" [167]
In
late
circumvented
July,
Secretary of the
the MMS,
Interior
James
USFS and IBLA to personally
Watt
deny
all
administrative appeals filed against Getty's permit decision.
[168]
the
The move outraged the appellants.
ongoing
State
Additionally,
Association
Alliance
the
began
Schuster
Jackson
at
State
and
Club and the
preparing
lawsuits.
no cost,
its lawsuit.
Wyoming
The
Spence,
OGCC vigorously pursued
site
that
had
its
hearings.
It
previously
wellsite
been
from Getty and opponents to the well.
subpoenas
to
federal
federal officials to
officials refused to attend.
and
drilled
appear
10 to provide depositions.
166
nationally
and
testimony
on August
Hole
Moriarity
to its original condition by Getty.
Commission
Wilderness
Jackson
reclaimed
ten
courts.
[169]
arranged with Getty Oil to tour the proposed
additional
the
the aid of the
Hole law firm of
in developing
The
hearings
Sierra
received,
prominent
OGCC
Attention turned to
It
an
and
obtained
It
issued
before
the
[170]
The
They argued that
the
permitting decision was a federal issue that had already been
ruled
upon
officials
by
Secretary
Watt.
did not appear,
[171]
When
the OGCC canceled
the
federal
the hearing
and
denied Getty's permit. [172]
The
outcome
uncertain.
waging
As
the
Little
of this writing,
the battle on two fronts.
filed
against
several
Secretary
of
Granite
opponents
Creek
case
permit.
suits.
is
of the well
are
Three lawsuits have
the Interior
James
been
Watt
other DOI officials responsible for issuing
drilling
these
of
and
Getty's
Getty Oil Company is also a defendent
The
suits
have been filed
by
Governor
in
Ed
Herschler on behalf of the State of Wyoming,
the Sierra Club
Legal
The
Defense
Society
and
Fund for the Sierra
Club and
the Jackson Hole Alliance in
eight Jackson Hole residents.
Wilderness
conjunction
with
The contentions in all
three
suits are similar and hence the suits have been consolidated.
The
causes of action include Forest Service violation of the
Endangered
Act,
the
Species Act,
conflicting
defendent.
been
set
Environmental
Administrative Procedures Act,
constitutional
Alliance
the National
rights,
DOI
violation
federal and
of the public
rulings on lessees' rights to
by
A September 6,
Wyoming U.S.
state
trust
The
from
each
1983 jury trial date
District
Court
and
drill.
is asking $5 million in punitive damage
[173]
Policy
Judge
has
Clarence
Brimmer to hear the three, consolidated lawsuits. [174]
Opposition
Getty
can
has also shifted to another
front.
begin preparing its wellsite it must first
167
Before
build
the 6.5 mile road into Little Granite
can
begin constructing the road,
Creek.
But, before
Getty must obtain
a
building
permit
National
Forest Supervisor Reid Jackson approved the
in late 1982.
the
from
[175]
the
Forest
His decision
Regional Forester in Ogden,
decision.
The
appeal
is
Service.
now in
imminent,
permit
though,
to
who upheld Jackson's
Deputy
Housley's hands in Washington, D.C. [176]
is
road
Bridger-Teton
was appealed,
Utah,
it
USFS
Chief
Ray
Housley's decision
after having been delayed several months by
Congressionally-imposed
moratorium
on
all
oil
and
a
gas
activity. [177] Getty officials are confident that the roadbuilding
return
permit will be approved.
At that time they plan to
the State of Wyoming
approvals
to
for final
there.
[178]
Conclusions
The
alone.
An
cases
discussed in this chapter by no means
stand
Numerous others are now beginning or are in process.
appeal
has been filed over
recommended
leasing
Vermont's Green Mountain National Forest. [179]
within
Lawsuits are
being drawn up by both industry and environmental groups over
proposed leasing in Wyoming's Washakie Wilderness.
The fate
of Montana's Deep Creek Further Planning Area is in the hands
of
a
federal
district
court
judge.
The
California
congressional delegation has appealed to President Reagan
withdraw
two
California Wilderness Areas from oil
168
and
to
gas
leasing; the California State Coastal Commission has promised
it will prevent leasing if President Reagan fails to do
that
so.
[180]
James
In late August,
Watt
without
1982,
Secretary
announced that several leases
his
of the Interior
had
been
issued
knowledge in a South Carolina Wilderness
Area,
thereby violating his agreement with Congress to withhold all
leasing
have
1982.
until November,
taken
Service
[181]
Environmental
groups
US
Forest
Department of the Interior
the
and
to court for issuing leases in New Mexico's
Capitan
Wilderness Area.
Disputes
decisions
over
are
officials.
oil
gas
leasing
is
problem
not that
permitting
and
generated by capricious
not
The
and
the
Forest
Service
Forest
Service
selects the wrong alternatives to study, evaluates them using
the
wrong criteria or assigns the wrong values to
outcomes.
The
problem
is that there are no right
Because these decisions are inherently
outcomes
subject
are
Likewise,
legitimate.
to question and opposition.
structured
answers.
judgmental,
numerous
any decision
can
be
Because the process is
to develop technically defensible decisions
when
it ensures that decisions
will
such decisions do not exist,
be
different
The
opposed.
stakes
are
just
too
great
to
expect
otherwise.
The
next
explores some of
the
factors
Chapter
substantive
4
describes
how
the
procedural
requirements of the Forest Service have
169
that
exist
to public land management problems as they
contribute
today.
chapter
and
changed
since the mineral leasing laws were
it
addresses
1970s
has
how the political
changed
enacted.
environment
Additionally,
of the 1960s
the nature of public land management
how the Forest Service has responded to this change.
170
and
and
CHAPTER 3 -- REFERENCES
[1]
See
Chapter
4
for
a
description
of
the
forest
management planning process mandated by the National
Forest Management Act and the Roadless Area Review and
Evaluation process conducted under the Wilderness Act.
[2]
Kevin
C.
Gottlieb,
"Rigging
the Wilderness,"
Part I,
The Living Wilderness, Spring 1982, pages 13-17.
[3]
"James Watt's Environment: Promised Land," Transcript
from Public Television (PBS) Broadcast, December 9,
1981.
[4]
Ibid.
[5]
For example,
Rocky Mountain Oil and Gas Association
Andrus, 500 F. Supp 1338 (D. Wyo. 1980).
v.
For
v.
[6]
example,
Mountain
Andrus,
499 F.
Legal Foundation
Mont. 1981).
[7]
PBS Transcript,
Land," op. cit.
[8]
16 U.S.C.
1131
States
Legal
Foundation
Supp. 383 (D. Wyo. 1980); and, Pacific
v. James Watt,
529 F. Supp. 982 (D.
"James Watt's
Environment:
Promised
(1976).
[9] This criteria has been amended, however, to encourage
designation of previously logged or developed eastern
national forests.
See Michael Frome, Battle for the
Wilderness, Praeger Publishers, New York, 1974, Chapter
11: "Any Wilderness
in the East?"; see also, William
E.
Shands and Robert G. Healy, The Lands Nobody Wanted,
The Conservation Foundation, Washington, D.C. 1977.
[10] Jackson Hole Guide, "Proposed Oil Well Needs Your
Attention," volume 26, number 18, November 17, 1977,
page Al, A10.
[11]
Interview with Story Clark, Jackson Hole Alliance for
Responsible Planning, Jackson, Wyoming, November 1981;
see also, Jackson Hole Guide, Editorial: "Here We Go
Again,"
December 14,
well in our backyard,
1978:
"...we don't want an oil
especially in a backyard that is
a haven for wildlife, a pristine water source and one
of the most beautiful wilderness areas in the country."
[12]
Draft Cache Creek-Bear Thrust Environmental Impact
Statement: Proposed Oil and Gas Drilling Near Jackson,
Teton County, Wyoming, US Department of the Interior,
Geological Survey, Conservation Division, US Department
171
of Agriculture, Forest Service, Bridger-Teton National
Forest, 1981, (hereinafter: Cache Creek dEIS) page II23.
[13] Jackson
Hole
Problems,"
Guide,
"USGS Report Minimizes Oil
[14] Jackson Hole Guide,
Results," volume 26,
All.
[15]
Well
July 5, 1979, page A3.
"Public Input on Oil Well Brings
number 21, December 8, 1977, page
Interview with Ralph McMullen, Executive Director,
Jackson Hole Chamber of Commerce, Jackson, Wyoming,
November
1981.
[16]
Interview
op. cit.
[17]
Oil and Gas Journal, "New Discovery, Development Buoy
Hopes in Montana's Overthrust Belt," November 16, 1981,
pages 121-122.
[18]
Congressional Record, May 20, 1980, S5650.
with
Story Clark,
Jackson
Hole
Alliance,
[19] National Geographic, "Our National Forests: Problems in
Paradise," September 1982, volume 162, number 3, page
311.
[20]
Environmental
Assessment
for Oil and Gas Exploration
in
the Palisades Further Planning Area, US Department of
Agriculture, Forest Service, Targhee and Bridger-Teton
National Forests, (hereinafter: Palisades EA).
[21]
Oil and Gas Exploration
and Leasing within
the Washakie
Wilderness: Draft Environmental Impact Statement, US
Department of Agriculture,
Forest Service,
Rocky
Mountain Region,
Shoshone National Forest,
1981,
(hereinafter: Washakie dEIS).
[22]
Oil
and Gas Journal,
"Search in
Forests at Issue," November
[23]
Boston
Globe,
of Vermont,"
[24]
California
23, 1981, pages
National
52-53.
"Oil Prospectors See Green in Mountains
April
22, 1982, page
1, 34.
Ibid.
[25] Congressional Record, op. cit., page S5651.
[26]
Ibid., page S5648.
[27]
42
U.S.C.
4321-4347.
Section
102(c) of the National
Environmental Policy Act requires that all federal
agencies "include in every recommendation or report on
172
proposals for legislation and other major Federal
actions significantly affecting the quality of the
human
environment,
a detailed statement by
the
responsible official on -- (i) The environmental impact
of the proposed action, (ii) Any adverse environmental
effects which cannot be avoided should the proposal be
implemented, (iii) Alternatives to the proposed action,
(iv) The relationship
man's
between
local short-term
environment and the maintenance and
of long-term
productivity,
irretrievable
involved
and
uses
(v) Any irreversible
commitments of resources which would
in
the
proposed
action
of
enhancement
should
it
and
be
be
implemented."
[28]
Forest Service Manual Section 2822.42.
[29]
Letter from Bill Cunningham, Northern Rockies Regional
Representative for The Wilderness Society, to John R.
Matis, USGS, October 16, 1981.
[30]
U.S.
Department
of
the
Interior,
Office
of
the
Solicitor, Denver Region, Memorandum to John Matis,
Cache-Creek EIS Task Force Leader, USGS, from Lowell
Madsen,
Acting Regional Solicitor, Rocky Mountain
Region,
October
10,
1980,
(commonly referred
to as the
Madsen Memo).
[31]
Letter from Philip M. Hocker, then Secretary, Gros
Ventre Wilderness Committee, Representative, Wyoming
Chapter of the Sierra Club, to Bridger-Teton National
Forest Supervisor Reid Jackson,
"re: Comments on
Proposed Cache Creek Oil/Gas Well," November 28, 1977,
page
3.
[32]
Hocker letter, supra., note 55.
[33]
Casper Star-Tribune, "Jackson Drilling Study Shows Feds
as Yesmen,"
Sunday, August
30, 1981.
[34]
Forest Service Manual Section 2821.03(3).
[35]
Forest Service Manual Section 2822.46.
[36]
Forest Service Manual Section 2822.21.
[37]
Ibid.
[38]
Forest Service Manual Section 2822.46.
[39]
Interview with Philip Hocker, Member, Sierra Club Board
of
Directors
and
Sierra Club
Wyoming
Chapter
Conservation Chairman, and with Pete Jorgenson, Teton
County Engineer and private consultant to oil and gas
companies on engineering concerns, November 1981. Both
173
emphasized the pressures on District Rangers
stipulations applied at lease issuance must
in
practice.
Jorgenson
implemented
as an operator's
experiences
when he,
observed lease stipulations "amended" in
facilitate
road building
letter
USFS Chief R.
to
or site
development.
Max Peterson about
Phil Hocker argued
Stipulations,
when the
then be
recounted
engineer,
order to
that:
In
the
a
FPA
"The long time
period, with many changes of personnel, which will be
involved makes it doubly necessary that the Further
Planning Stipulation be written in unambiguous form, to
Experience with
other
direct
future
managers.
stipulations, in actual field use in various National
Forests, gives ample evidence that where a stipulation
can be misinterpretted
or ignored,
it will be."
[40]
Forest Service Manual Section 2822.42.
[41]
Bill Cunningham,
The Wilderness
Society,
op. cit., note
29.
EA, op. cit., pages 27-28.
[42]
Palisades
[43]
Ibid., page 27.
[44]
Ibid., page 46.
[45]
Ibid., evaluation
[46]
Interview with Philip M. Hocker, Member, Sierra Club
Board of Directors, and Sierra Club Wyoming Chapter
Conservation Chairman, Jackson, Wyoming, November 1981.
[47]
Palisades
[48]
Phone interview with Bruce Hamilton, Northern Great
Plains Regional Representative, Sierra Club, October
1981; also, interview with Philip Hocker, Sierra Club,
criterion
number
3.
EA, op. cit., pages 46-47.
op. cit.
op. cit., page 3.
[49]
Cache Creek dEIS,
[50]
Ibid., pages
[51]
Ibid., page III-1.
[52]
Ibid.
[53]
Ibid., Chapter
[54]
Ibid., page V-1.
[55]
Letter from Philip Hocker, Wyoming Chapter Conservation
Chairman, to John Matis, USGS, Cache Creek EIS Task
3-4.
V.
174
Force Leader,
"re: Comments on Cache Creek-Bear Thrust
dEIS,"
October
19, 1981, page 15.
[56]
Ibid.,
page
[57]
Cache Creek dEIS, op. cit., page 5.
[58]
Ibid., page IV-15.
[59]
Interview with Story Clark, Jackson Hole Alliance, op.
cit.;
Interview with Philip Hocker, Sierra Club, op.
1.
cit.; see also, letters
in notes 55 and 61.
[60]
Cache Creek dEIS, op. cit., page 7.
[61]
Letter from Bob Golten,
Counsel to the National
Wildlife Federation, and Sharon D. Nelson, Legal Intern
for the National Wildlife Federation, to John Matis,
"Re: Cache Creek-Bear Thrust DEIS," October 19, 1981,
pages
7-8.
[62]
Ibid.
[63]
See for example: Edith Stokey and Richard Zeckhauser, A
Primer for Policy Analysis, W.W. Norton and Co., New
York,
1978; and, Nathaniel
Lichfield,
Peter Kettle
and
Michael Whitbread, Evaluation in the Planning Process,
Pergamon Press, Oxford, 1975.
[64]
Interview with Al Reuter, USFS Minerals Specialist,
Bridger-Teton National Forest, November 1981. He argues
that the Forest Service is implementing Congressional
policy in the way in which it now makes decisions: "The
USFS
is
not
a
policy
making
body,
it's
an
administrative body.
If different groups want policy
changes they have to go to Congress.
The Forest
Service simply implements Congressional policy."
[65]
Interview with R. Max Peterson, USFS Chief, October
1982; also, interview with Al Reuter and Gary Marple,
USFS Minerals Specialists,
Bridger-Teton
National
Forest, November 1981.
[66]
Interview with USFS Chief R. Max Peterson, ibid.
[67]
Washakie
[68]
The
dEIS, op. cit.
Washington Post,
and Its Grizzlies'
"Jammed Yellowstone Awaits
Fate,"
September
7,
1981,
Watt
pages 1,
2.
[69]
Letter
from
Administrator,
Roger
L.
Williams,
to John Matis,
175
EPA
USGS, August
Region
26, 1980.
8
[70]
Letter from Joseph C. Greenley, Director, Idaho Fish
and Game Department, to David Jay, Forest Supervisor,
Targhee National Forest, December 10, 1979, containing
joint comments for the Wyoming Game and Fish Department
and Idaho Fish and Game Department.
[71]
Palisades
EA,
op.
cit.,
"Finding
of No
Significant
Impact" attachment.
[72] Jackson Hole Guide, "Forest Service Calls for Impact
Statement on Cache Creek Oil Exploration," volume 26,
19, 1978, page 1.
number 27, January
[73]
Ibid.
[74]
Ibid.
[75]
Interview with Al Reuter and Gary Marple, USFS Minerals
Specialists, Bridger-Teton National Forest, Jackson,
Wyoming, November, 1981.
[76]
The
previous
was
EIS
on proposed
drilling
the
in
Florida Everglades.
[77]
Jackson
19, 1978, op. cit.
Hole Guide, January
[78] Jackson Hole Guide, "USGS Pushes Cache Creek Oil
Drilling," volume 27, number 9, December 14, 1978, page
All.
[79]
Letter from Bridger-Teton National Forest Supervisor
Reid Jackson to John Fraher, USGS District Engineer in
Rock Springs, Wyoming, April 2, 1979, letter number
1950(2820), pages 3-4.
[80]
Jackson
Hole
Flares,"
number
[81]
[82]
[84]
Well
Controversy
op. cit.
Sun,
"Jackson Hole Using Its Clout
The Baltimore
Preserve A Way of Life," October 1981.
Interview with Ralph McMullen,
Jackson
Jackson
to
Jackson Hole Chamber of
op. cit.
Hole Guide,
Problems,"
[86]
Creek
11, July 4, 1979, page 1.
Interview with Al Reuter and Gary Marple, USFS Minerals
Commerce,
[85]
"Cache
10, volume
Ibid.
Specialists,
[83]
News,
Hole Guide,
Decision,"
"USGS Report Minimizes
Oil
Well
July 5, 1979, page A3.
volume
"Town,
27, number
176
County Delay Cache
49, July
Creek
19, 1979, page 1.
[87]
Interview with Ralph McMullen,
Commerce, op. cit.
[88]
Ibid.
[89]
Interview
with
Story Clark,
Jackson Hole Chamber of
Jackson
Hole
Alliance,
op. cit.
[90]
Interview with Philip Hocker, Sierra Club, op. cit.
[91]
Cache Creek dEIS, op. cit., page 1.
[92]
Philip Hocker letter, op. cit. note 55, pages 5-6.
[93]
Oil and Gas Journal, Editorial: "Government Breaches of
Wilderness
Law
Threaten
to
Forfeit
Petroleum
Resources,"
[94]
September
Oil and Gas Journal,
"Oil
Praises,
Environmentalists
Rap RARE II Bill," May 4, 1981, page 386.
[95] New
York Times,
Wilderness,"
[96]
21, 1981, page 69.
Interview
"U.S.
August
with
Considers Drilling Leases in a
30, 1981, pages
Story Clark,
1, 50.
Jackson
Hole
Alliance,
op. cit.
[97]
The Baltimore Sun, October 1981, op. cit.
[98]
Interview with Ralph McMullen,
Commerce,
Jackson Hole Chamber of
op. cit.
[99] Wyoming's all-Republican Congressional delegation has
three members:
Senator Malcolm Wallop, Senator Alan
Simpson and Representative Richard Cheney
[100]
Jackson
Hole
Well," August
News,
"Simpson to
Oppose
Cache
Creek
26, 1981, page 1.
[101]
Jackson Hole Guide, "No Drilling in Cache Creek,
Senator Wallop Promises," September 3, 1981, page A7.
[102]
Ibid.
[103]
Interview with Dick Hamilton, District Manager,
Oil Company, Denver, Colorado, November 1981.
[104] Jackson
Hole News,
15, 1981, pages
[105]
Getty
"Getty Offers Lease Deal," October
3, 23.
Jackson Hole Guide, "Getty Oil Co. Lobbies for Drilling
the Little Granite Creek Area," October 15, 1981, pages
A3, A8.
177
[106]
Jackson Hole News, October 15, 1981, op. cit.
[107]
Interview with Dick Hamilton, Getty Oil Company, op.
cit.; see also, Jackson Hole News, October 15, 1981,
op.
cit.,
and,
Jackson
Hole Guide,
October
15, 1981,
op. cit.
[108]
[109]
Interview with Philip Hocker, Sierra Club, op. cit.
Interview
with
Story Clark,
Jackson
Hole
Alliance,
op. cit.
[110] Jackson Hole Guide, February 1982.
[111] Glen O. Robinson, The Forest Service: A Study in Public
Land Management, Resources for the Future/Johns Hopkins
University Press, Baltimore, 1975, page 22.
[112]
High
Country News,
Wilds,"
[113]
High
April
"Blaster's Reprieved
3, 1981, volume
Country News,
13, number
in
Marshall
7, page
2.
"Oil and Gas Hunters Locked Out of
Bob," May 29, 1981, volume
13, number
11, page
2.
[114]
Ibid.
[115]
Pacific Legal Foundation
982 (D. Mont. 1981).
v.
[116]
New York Times,
17, 1981, page 20.
[117]
Public Lands Institute Newsletter, "97th's Legacy to
New Congress: Public Lands, Wilderness Issues," volume
6, number
December
1, January
James Watt,
529 F.
Supp.
1983, page 1.
[118]
RARE II: Final Environmental Statement, Roadless Area
Review and Evaluation, US Department of Agriculture,
Forest Service, FS-325, January 1979.
[119]
Phone interview with Bruce Hamilton,
cit., interview with Philip Hocker,
Sierra Club,
Sierra Club,
op.
op.
cit.
[120]
Ibid.
[121]
Letter from Bruce Hamilton, Northern Great Plains
Regional Representative for the Sierra Club, to USFS
Chief R. Max Peterson, September 22, 1980.
[122]
Ibid.
[123]
USFS
Minerals
interview
with Syd
Grey,
Phone
Specialist, Washington D.C. Office, August, 1981.
178
[124]
Interview with Philip Hocker, Sierra Club, op. cit.
[125]
Forest Service Manual 2822.14b.
[126]
Forest Service Manual 2822.14b,
6, December
Interim Directive
No.
31, 1980, page 4.
[127]
Ibid.
[128]
Interview with Bruce Hamilton, Sierra Club, op. cit.,
and, interview with Philip Hocker, Sierra Club, op.
cit.
[129]
Letter from Bruce Hamilton to R. Max Peterson, op. cit.
note 121.
[130]
Ibid.
[131]
Ibid.
[132]
Judge Clarence
"In the U.S. District
Brimmer,
Court for
the District of Wyoming: Memorandum Opinion and Order
Judgment,"
Granting Plaintiffs Motion for Summary
Mountain States Legal Foundation v. Andrus, No. C7810, 1980.
165B, October
[133]
499 F. Supp.
383 (D. Wyo.
1980).
"Memorandum
Clarence Brimmer,
[134] Judge
Order..." op. cit., page 12.
Opinion
and
[135]
Ibid., page 1.
[136]
Ibid., page 2.
[137]
Ibid., page 27.
[138]
Interview with Bruce Hamilton, Sierra Club, op. cit.,
and, interview with Philip Hocker, Sierra Club, op.
cit.
[139]
Karin P.
the
Sheldon,
"Statement
Fund,
Matter
Consent
on
of
Oil
Attorney, Sierra Club Legal Defense
of Reasons
Forest
and
Gas
in Support of Appeal,"
Service
Leases
Recommendations
Issuance
National Forest System Lands in the Palisades
Planning Area, Idaho and Wyoming), pages 1-2.
(140]
(In
and
Involving
Further
Ibid.; also, Interview with Philip Hocker, Sierra Club,
op. cit.
[141]
Ogden Utah,
Regional Forester,
Jeff M.
Sirmon,
"Responsive Statement -- Palisades Further Planning
179
Area Environmental Assessment," September 3, 1980.
[142]
Karin P. Sheldon, Attorney, Sierra Club Legal Defense
Fund, "Reply to the Regional Forester's Responsive
Statement,"
[143]
William
September
L. Johnson,
Facts,"
Civil
Peterson,
US
24, 1980, page 3.
Counsel
Action
No.
District
for the USFS, "Statement
81-1230,
Court
for
Sierra
the
of
Club
v.
District
of
Columbia.
[144]
Ibid.
(145]
Sierra Club v.
R.
1230, US District
(146]
Ibid.
[147]
Jackson Hole Guide,
Lease," April
Max Peterson,
Civil Action No. 81-
Court for the District
of Columbia.
"Ruling May Affect Little
15, 1982, volume
30, number
Granite
40, page
1.
[148]
Jackson Hole Guide, "Despite Opposition, Little Granite
Well Approved," April 8, 1982, page A12.
[149]
Ibid.
[150]
Jackson Hole Guide, "Environmentalists Plan Protest,"
April 15, 1982, page A19.
[151] Jackson
Delayed,"
Hole Guide,
"Little Granite
Drilling
Permit
May 13, 1982, page Al.
[152]
Ibid.
[153]
Ibid.
[154]
Jackson Hole Guide, "Feds Approve Little Granite Well,"
May 20, 1982, page A3.
[155]
Ibid.
[156] Jackson Hole Guide, April 8, 1982, op. cit.
(157] Jackson Hole Guide, "Little Granite Battle Continues on
All Fronts,"
[158]
June 10, 1982, page A8.
Ibid.
[159] Jackson
Hole Guide,
"The Controversy
Continues:
The
Fears," July 1, 1982, page A3, 14.
[160]
Ibid.
(161]
High Country News,
"Jurisdiction Struggle over Wyoming
180
Drilling,"
June 11, 1982, volume
14, number
12, page 4;
see also, Jackson Hole Guide, "Governor Joins Little
Granite Appeals," June 17, 1982, page A14; Jackson Hole
Guide, "Herschler Tours Little Granite Site," July 22,
1982, page Al, 2; Alliance Newsletter, Jackson Hole
Alliance for Responsible Planning, volume IV, number 4,
July
1982.
[162]
Ibid.
[163]
Ibid.
[164]
Ibid.
[165]
Jackson Hole Guide, "Granite Creek Hearing Set
29," June 24, 1982, page A13.
June
[166] Jackson Hole Guide, "Vandals Hit CGG," July 15, 1982,
page A8; most of the damage was incurred by CGG, a
seismic exploration firm conducting seismic operations
in the area.
[167]
Jackson Hole Guide, "Abbey Lends Encouragement
Protest Rally Cause," July 8, 1982, page A19.
[168]
Jackson
Hole Guide,
"Watt Denies
Appeals," July 29, 1982, page A3.
[169]
Ibid.
[170]
Jackson Hole Guide, "State Rejects Little
Drilling Plans," August 12, 1982, page 1.
[171]
Ibid.
[172]
Ibid.
[173]
Alliance
Newsletter,
Responsible Planning,
Granite
to
Creek
Granite
Jackson
Hole Alliance
for
volume IV, number 7, November
1982, page 6.
[174]
Jackson Hole Guide, "Court Date Scheduled for
Granite," February 17, 1983, page All.
[175]
Jackson Hole Guide,
Plans," September
[176]
Little
"Forest Service Alters Getty
Road
23, 1982, page A3.
Jackson Hole Guide,
Closer," February 10,
"Little Granite Legal Showdown
1983, volume 31, number 30, page
1.
[177]
In
its October
2,
1982 "Continuing
Resolution
of
the
Budget,"
Congress temporarily denied any
federal
funding for mineral activity in national forests under
181
consideration for wilderness designation; see, Jackson
Hole Guide, "Congress Sets Moratorium on Little Granite
Exploration," October 14, 1982, page A13.
[178] Jackson Hole Guide, "Reid Jackson Will Decide Plans for
Getty's Little Granite Roads," September 30, 1982, page
A14.
[179]
New England Sierran, "Green Mt. Forest for
September 1982, volume 13, number 7, page 1.
Lease?",
[180]
Oil
National
and
Gas Journal,
"Search in California
Forests at Issue," November
[181]
Boston Globe, October 1982.
182
23, 1981, pages
52-53.
CHAPTER
4
WHY THE PARADIGM FAILS
differ
considerably from their statutory
the
practice,
process
is
very
counterparts.
It
political.
sufficiently informative or convincing;
moreover, it is not decisive.
in practice
and permitting
oil and gas leasing
As seen,
is
In
not
it is divisive; and,
In short, the process fails in
precisely those areas where, theoretically, it should excell.
Why
does
the
management
land
paradigm
within
which
decisionmaking occurs now fail when it succeeded for so long?
Land
They
management
cannot
solely
hides
the
judgmental
managers
technical.
scientific
aspects
review
and
But, on paper the
a
under
cloak
of
It assumes that scientifically trained
technical expertise.
land
subject to
purely
not
They are inherently judgmental.
analysis.
process
be
decisions are
will
be
able
to
acquire
the
appropriate
information with which to analyze specific proposals and then
reach
outcomes
inherent
that
advance the
public's
value judgments are hidden in
interest.
technical
The
analysis.
But, like the emperor's new clothes, this technical cloak now
hides
little and,
at least,
in this instance
the masses
are
not quiet about what they see.
National
judgmental.
forest
management has always been
Regardless,
the
Forest
Service
inherently
paradigm
prevailed for the first half of this century; these decisions
were
long accepted
to be scientific
183
in nature
and thus
best
left
to
professionals
in
trained
The paradigm remained
management and decisionmaking.
of
methods
scientific
intact
because the Forest Service's professional judgment was widely
Compared
trusted.
moreover,
and,
accepted
alternative of unbridled industrial exploitation,
with
the
the public
welcomed professional forestry as a godsend.
Today
in
the judgment exercised by professional
public
managing
is
lands
no
accepted;
longer
to
the
First,
management.
judgmental
overtly
environment
changing
the
than
Forest
it
public
of
Service task is
been
ever has
their
Several factors
management processes are no longer trusted.
contribute
foresters
in
land
more
now
the
past.
Congress has mandated numerous and competing objectives
choices between legitimate yet conflicting
demand
Furthermore,
these
conservation
ideal.
outcomes.
mandates are not all consistent with the
Several are based
in
preservationist
notions about appropriate natural resource management.
is premised
the paradigm
because
preservation
accommodating
values.
Additionally,
involved in oil and gas leasing and
has
more critical to
public
its
has lost faith
concerns.
turning
are
decisionmaking.
in the Forest
Increasingly,
Service
groups
deemed more appropriate and more
resource
and
Finally,
their concerns.
statutes
enacted
just;
Second,
responsiveness
individuals
decisions
the
the
to
are
that
that
the numerous natural
in the 1960s and 1970s
184
of
exploration
to Congress and the courts to obtain decisions
accommodate
But,
on use, it is not capable
uncertainty
become
that
have
not
only
legitimized their arguments but also distributed
amongst
many
deemed
inappropriate.
heightened
user
groups with which
And,
to
because
in the last two decades,
oppose
the
power
decisions
stakes
this power
is
have
used
to
oppose decisions that fail to accommodate a group's concerns.
Public Land Management in Transition
Today's
that
of
US
Forest Service task differs
markedly
from
encountered when the agency was established at the turn
the
century.
The
management has always
After World War II,
more
agency's
paradigm
of
scientific
been subject to attack by some groups.
though,
support began eroding at a much
rapid pace as other visions of appropriate public
uses
took
hold
decisionmaking.
illustrate,
resource
As
gained
the
Forest
allocation
scientific
But,
the
and
task
land management
cases
influence
discussed
and
in
Service now confronts
in addition
to
a
the
land
power
in
Chapter
3
political
traditional
task to which it has long adhered.
while the problem framed by the public and Congress has
changed,
the
decisionmaking
process applied by the
Forest
Service has remained grounded in the same paradigm; one where
professionals are responsible for acquiring and
information
where
end.
and
pronouncing efficient
conservation,
not preservation,
assimilating
outcomes;
and,
one
of resources is
the
The same paradigm is unable to accommodate both ends.
The scenario
prior
to
described
World War II.
in the last chapter did not exist
Before that time,
185
the
US
Forest
Service
using
served largely as custodian of the national forests,
professional
silvicultural
and pest,
flood
control practices to maintain the forests.
was
little
demand
and
At the time there
for national forest resources
exception of timber and that was still marginal.
concentrated
fire
with
the
The agency
on assisting private forest management
and
in
fire, pest and disease control in public and private forests.
Part
of
its
was
responsibility
road-building
to
promote
firefighting,
overseeing the forests and logging when it did
occur.
disputes
What
preservationists
did arise were the old ones
advocating wilderness preservation and
forestry conservationists advocating resource use.
preservationists
Forest
between
during
this time had little
[1]
the
But,
influence
Service decisionmaking or recourse against
in
decisions
they deemed inappropriate.
The Heart of the Paradigm -- Conservation -- Challenged
While
of
Pinchot
manage
the
conservation
preservationists had supported the early
and
public
profession
forests,
philosophy
conservationist's
alternative
the forestry
they
to
establish
and
never
adopted
the
time,
the
themselves.
proposal
was
efforts
simply
At
the
a
more
desireable
to the non-management and disposal problems then
plaguing the forests.
Moreover,
support
But,
a
major difference in values continued to separate the
two
groups
create
preservationists'
and
popular
and
than did the
it had more political
tensions
186
between
proposals.
them.
Their
disagreements were highlighted by the battle over damming the
Hetch
This
and
Hetchy
valley in California's
Nevada
Range.
dispute destroyed the long friendship between John Muir
Preservationists continued to try
Gifford Pinchot.
influence
some
Sierra
Pinchot and his successors to consider
national
forests
intact for
the
to
preserving
benefit
of
future
But, the two philosophies were incompatible and
generations.
the preservationists efforts met with little success.
For
much
something
of
to
United
be conquered
States
history,
and subdued.
wilderness
As
one
was
historian
described this early view:
The pioneers' situation and attitude prompted them to
use military metaphors to discuss the coming of
civilization.
Countless diaries,
addresses,
and
memorials
of
the
frontier
period
represented
wilderness as an "enemy" which had to be "conquered,"
"subdued,"
same
and "vanquished"
by a "pioneer
army."
phraseology persisted into the present
The
century;
an old Michigan pioneer recalled how as a youth he had
engaged in a "struggle with nature" for the purpose of
"converting
a wilderness into a rich and
prosperous
civilization." Historians of westward expansion chose
the same figure: "they conquered the wilderness, they
subdued the forests, they reduced the land to fruitful
subjection."
2]
But, once the Forest Service was well-established, a minority
of
federal land managers and private individuals and
again
began
purposes
of
advocating the preservation for
several
important areas.
landscape
particularly
Arthur Carhart,
architect,
scenic
or
groups
non-commercial
ecologically
the Forest Service's first
was assigned the task of planning
for
recreation and summer home development in particularly scenic
national
forest
areas.
But,
superiors that:
187
he
reported
back
to
his
the first logical step in any work of this type is to
plan for preservation and protection of all of those
things that are of values great enough to sacrifice a
esthetic
certain
amount of economic return for
qualities.
This
comment,
agency
values
[3]
coming in 1919,
was one of the first
that preservation might
indications
that should not universally
definable
have
be disregarded
intra-
in favor of
It also conformed to
the quantifiable commercial land uses.
Forest Service policies regarding economic efficiency in land
But, it was not readily accepted.
management.
Several
later,
years
Forest Ranger
US
Aldo
Leopold
Leopold's efforts led
pursued the issues Carhart had raised.
to administrative classification of the first national forest
Southwest.
the Gila Wilderness in the
wilderness area,
[4]
Forest Service Chief William B. Greeley not only approved the
has
frontier
The
civilization.
be
kept to preserve
ceased
long
encouraged
to
He commented
be
a
[5]
our civilization."
under
L-20
which
primitive
areas
were
intended
conditions of environment,
areas
for
purposes
recreation."
authorized
to
maintain
transportation,
of public
either
education,
forest
These
Chief.
"primitive
habitation,
view to conserving the value
a
However,
by
to
Greeley
national
areas" could be designated by the
with
that
barrier
In 1929
"primitive
subsistence,
further
question is rather how much of it should
Regulation
established
also
in other national forests.
designations
"the
but
designation
Wilderness
Gila
of
inspiration
and
such
and
exceptions to these purposes could be
the
Chief
188
or
the
Secretary
of
Agriculture.
[6]
But,
Forest
preservationists
Service
were
policy.
The
not appeased by
Forest
Service
preservation did not coincide with their own.
and
analysis of these early regulations,
this
new
values
in
In his review
historian
Michael
Frome questionned the true Forest Service intent:
The Forest Service,
however, did not anticipate
reserving
the primitive areas indefinitely
from
commercial use.
Many of the remote portions with
outstanding scenic and recreational qualities were
being kept from haphazard road-building and commercial
development until a time when more intensive study was
needed.
It
is
also
conceivable
that
the
Forest
Service was trying to keep one step ahead of its
"sister
agency," the National Park Service;
by
demonstrating active concern for wilderness, it was
better able to block establishment of new parks out of
old forests.
Perceiving
Society
of
of
Wilderness
preservation
conduct educational programs concerning
wilderness,
encourage
cooperation
in
wilderness."
Forest
The
was established in 1934 "to secure the
mobilize
[8]
scientific
resisting
Organization
the
and pressure
the
studies,
and
invasion
of
external
to
the
Service was needed because national forest wilderness
areas
were
past.
One
then
a wolf in sheep's clothing,
wilderness,
value
[7]
being threatened
more than at any
in
the
of the organization's founders was Bob Marshall,
Director
of
Forestry
for
the
Interior's
Office of Indian Affairs.
initiated
a
Secretary
time
series
of
memos
Department
In that
between
capacity
himself
of the Interior Harold Ickes about
of
the
and
the
he
then
potential
consequences of New Deal public works programs on undeveloped
189
wilderness
would
areas.
soon
traverse
recommended
specific
most
undeveloped
territory
and
he
to Ickes that wilderness areas be set aside with
standards
boundaries.
In
Marshall's greatest worry was that roads
prohibiting
development
within
their
[9]
1937,
Marshall continued his battles for wilderness
preservation as Forest Service Chief of Recreation and Lands.
His
efforts,
constituencies
combined
with
continuing
such as The Wilderness
pressure
Society,
from
led to Forest
Service "U" regulations in September 1939.
These regulations
were stronger
than the old L-20 regulations
and
a
for expansion
procedure
of wilderness
"established
and
for
excluding
developments previously permissible in primitive areas." [10]
But, Forest Service administrative classifications under
these
"U"
regulations
proposals
encountered
perceived
their
remained
few and far
opposition from
responsibility
As a result,
USFS
who
managing
the
not preservation of a single
the remaining
national
forest wilderness
areas were gradually being consumed by other uses.
Forest
Service
containing
acres.
acres
figures showed the
74 roadless areas,
The largest
in size.
acres.
roadless
roadless
In total,
of
national
In 1926,
forest
each having at least
system
230,400
area at that time was 7 million
the 74 areas covered
But, by 1961, similar
areas
Many
officials
to be one of
public lands for multiple-uses,
use.
between.
reviews
230,400 acres
largest at that time had dwindled
190
or
indicated
more
to 2 million
55
million
that only 19
remained.
acres.
The
All 19
areas
now totalled only 17 million acres.
areas
are
distinguished by their
[11]
roadless
Wilderness
feature.
But,
roads are critical to timber and other commercial development
as
well
as
pressures
fire
prevention
intensified,
national
lands
to
and
wilderness
control.
was
forest road system exploded.
or no value
for other uses.
these
destroyed
as
Consequently,
set aside as wilderness were most often
little
As
the
those
those
having
As one historian
of the
long fought battle over wilderness recounted:
The protected wilderness existed more by accident than
design. Most of its commercial resources, composed of
lands
by-passed
in
the
rush
of
settlement
and
exploitation from east to west, were too poor to
utilize or too costly to develop. About one-fourth of
all acreage in reserved wilderness was composed of
mountain peaks, desert, sand dunes, lava flows, and
rock slides; about one-third was covered with brush or
with scrubby and other nonproductive forests; another
third was productive timberland,
while a
small
percentage was meadow, grassland, or water surface.
The
timberlands
contained 8 million
acres
of
productive wood sources -- only about 2 per cent of
the nation's total, or a sufficient volume to supply
national
As
demands
following
proved
the
national
insufficient
of
to
resources
the Forest Service "U"
protect
wilderness
exploded
regulations
areas
to
the
They perceived
in
the
Service an emerging emphasis on timber production
what
commercial
designated
logged.
[12]
forest
preservationists.
expense of wilderness
result,
to
for
for two years.
World War II,
satisfaction
Forest
needs
and other resource
values.
As
at
a
wilderness had been protected began succumbing
pressures.
development
areas
were split by roads and
Administratively
some
areas
were
Critically, the Forest Service was also raising the
191
ire
of the general
clear-cutting
helped
public as well as preservationists
practices increased.
bolster
the
as its
This increasing
preservationists
arguments
clamor
and
open
Congress' door. Michael Frome reviewed the events that led to
diminished
confidence
in
administrative
management
of
wilderness areas and in the Forest Service in general:
Although citizen groups had long supported the Forest
Service as an agency concerned with scenic resources
and wilderness, they lost their place as a key part of
its constituency.
The timber-first policy came to the
fore
in response to several factors,
one
being
the
political pressure of the timber industry, which,
having intensively cut its own private lands without
adequate concern for sustained yield, became reliant
on public lands,
including the remaining
virgin
forests, to keep its mills going. [13]
After
public
World
land
dimension
War
II,
management emerged.
of the Forest Service
decisions
as
The
resource
the
by
allocation
varied
of
national
Timber demands were increased by
industry that had both poorly managed the private forests
and needed expanded sources of timber to meet the
demands of a post war housing boom.
from
the
million
1910
board
to about
demands
time.
the
1965.
burgeoning
The amount of timber cut
national forests increased from approximately
feet (1-2% of total domestic
exploded
board feet by 1965.
from a population with
500
production)
2 billion board feet just before World War
and more than 10 billion
to
posed
task came to the forefront
conflicting demands for
forest resources increased.
an
the problem currently
in
II
[14] Recreation
increased
leisure
There were approximately 5 million recreational visits
national
[15]
forest in 1925 compared
to 150
million
An increasingly urbanized society demanded
192
by
more
for
opportunities
nation's
was
resources
for the mineral
and watershed
wildlife
preservation,
demands for increased wilderness
protection
the
in
contained
so
The environmental awakening of the 1960's led
public lands.
to
The
retreat.
wilderness
and
productivity was increasing and hence
economic
demand
the
solitude
It led to an increased
management.
concern about mankind's responsibility towards and dependence
demands
in the 1970's,
And,
upon the natural environment.
for domestic energy production increased and attention turned
to the previously neglected national forests.
Groups and individuals concerned with the non-commercial
scenic
and wilderness resources were not satisfied with
Forest
Service's response to their demands.
that
the
believed
They
too much emphasis was being placed on timber sales
and
all at the expense
of
road-building
to accommodate
particularly
scenic
unaccommodated by
logging,
and wild areas.
With
concerns
their
these
the administrative process,
groups
shifted their attention to Congress.
The Congressional Response to Changing Demands
Initially,
raised
problem
clamor
had
was
the
question
age-old
Act was not enacted until
intensified and,
of
and,
moreover,
1964.
first
wilderness
then,
the
predicted,
In fact, the environmental
the social activism
193
By
as might have been
Congress became more responsive.
awakening
The
responded cautiously.
Brought before Congress in the mid-1950's, The
preservation.
Wilderness
Congress
of
the
late
1960's and early 1970's provided Congress with little choice.
As one analyst of the environmental
decade
commented:
Although
Nixon was by no means an enthusiastic
supporter of the environmental movement, his signature
on NEPA was considered indicative of the fact that no
politician could afford to ignore the demands being
made by the movement. [16]
Similarly,
Senator Edmund Muskie's adoption of the clean air
cause
been attributed by some political analysts as
has
attempt to respond to a no-lose growing public concern,
gaining
support
for his presidential
campaign.
a
the
environment
was
passage
several monumental environmental
have
of
destroyed
cause to advance;
the
original
premise
[17]
decade
saw
statutes
upon
an
thus
The
the
that
which
the
traditional land management paradigm is based: conservation.
But,
the
issues
simple ones to resolve.
placed
before Congress
They were not,
were
hardly
as often portrayed,
obvious questions of good (the public interest) against
(industry and an unresponsive bureaucracy).
more
Arguments
wilderness preservation meant less timber and
development,
Because
each
legislation
constituency
could
something for each.
seldom
for
minerals
both critical to a thriving economy.
nature of the legislative process,
evil
As is the
compromise was necessary.
had its advocates
be enacted
before
in
Congress,
it
contained
The result is a collection
of
natural
resource statutes that contain obviously conflicting mandates
to public
3,
land managers.
because
objectives
correct decision;
And, as seen in the cases
compete,
there
is
no
in Chapter
technically
almost any decision reached can be opposed
194
on
the grounds
that it fails to address
the objectives
of
a
particular statute.
Several
statutes
natural
affect
resource and
land
management
the operation of the mineral leasing
These are outlined below,
requirements
public
that
laws.
highlighting those provisions
make the Forest Service decision
and
unclear
and give power to land user groups to question administrative
decisions
deemed
inappropriate.
placed on The Wilderness
Forest
many
Particular
Act of 1964 because,
emphasis
at this
time,
Service implementation of this Act's provisions
disputes
involving
oil
and gas
exploration
is
in
fuel
the
national forests.
The Wilderness
Because
Act of 1964
the early USFS wilderness classifications
administrative decisions,
they could easily be undone.
result,
feared that future
preservationists
In
administrative
the
eyes
that
development
preservationists,
the
classification system also suffered from
other important defect;
ensure
of
As a
administrators
might re-classify land in response to commercial
pressures.
were
one
because it was haphazard, it did not
important
wilderness
areas
would
ever
be
preserved. Consequently, preservationists moved their efforts
to
the
Congressional
encourage
systematize
arena in the 1950's.
legislation that would both
the
preservation
hoped
institutionalize
process as well
designated wilderness areas in perpetuity.
195
They
as
to
and
preserve
The Forest Service opposed the Act, arguing that:
This bill would give a degree of
Congressional
protection to wilderness use of the national forests
which is not enjoyed by any other use.
It would tend
to
hamper
free
and
effective
application
of
which
determines,
and
administrative
judgment
should continue
to determine,
of
now
the use or
combination
uses to which a particular national forest is put.
[18]
The
Forest Service was joined by the National Park
Service,
the two professional forestry associations -- the Society
of
American
--
the
Foresters and the American Forestry Association
forest products industry,
the oil and mining industries
and grazing interests in opposing the act.
were
held
on the Wilderness
Bill between
Eighteen hearings
1957 when
first introduced and 1964 when it finally passed.
was
rewritten
time and again before
affected groups.
[19]
signed The Wilderness
The Wilderness
it
The
it was accepted
In September 1964,
by
was
bill
all
President Johnson
Act into law.
Act of 1964 [20] largely accomplished
preservationists' objectives.
In the Act,
the
Congress declared
that:
In order to assure that an increasing population...does
not occupy and modify all areas within the United
States...leaving no lands designated for preservation
and protection in their natural condition, it is hereby
declared
to be the policy of Congress
American
For
The
to secure
people...an enduring resource of
this
purpose
it is hereby established
Wilderness
federally
Preservation
owned areas
"wilderness
area."
System to
designated
be
by
for the
wilderness.
a
National
composed
Congress
of
as
[21]
Act automatically placed all administratively classified
national forest "wilderness," "wild" and "canoe" areas in the
new
wilderness
system.
It
196
instructed
the
Secretary
of
Agriculture
or Chief of the US Forest Service
administratively
inclusion
in the system.
with
for
designated "primitive" areas
A ten year deadline
reporting their findings to the President.
charged
to review
making recommendations to
the final decisionmaker
Similar
the
park
instructions
on all
Congress
regarding
Wilderness
Congress
designations.
were spelled out for the secretary
system and national
wildlife
for
The President was
(In
refuges.
of
national
interior with respect to roadless areas in the
Federal
possible
was imposed
which "primitive" lands should become "Wilderness."
is
all
1976,
Land Policy and Management Act -- commonly
the
referred
to as the BLM "Organic" Act -- extended wilderness evaluation
and designation
Congress
wilderness
in
President
and
mandates
to BLM lands.)
[22]
provided a very lengthy definition of the term
order
to
guide
the
itself
eventually
two
in
Secretaries,
making
the
wilderness
designation recommendations and decisions:
A wilderness in contrast with those areas where man and
his own works dominate the landscape, is hereby recognized
as an area where the earth and its community
of
life are untrammeled by man, where man himself is a
visitor who does not remain...wilderness is further
defined to mean...an area of undeveloped Federal land
retaining its primeval character and influence, without
permanent improvements or human habitation, which is
protected
and
managed
so as to preserve
its
natural
conditions and which (1) generally appears to have been
affected primarily by the forces of nature, with the
imprint of man's work substantially unnoticeable; (2)
has outstanding opportunities for solitude or a primi(3) has at
and unconfined type of recreation;
tive
least
five thousand acres of land or is of
sufficient
size as to make practicable its preservation and use in
an unimpaired condition; and, (4) may also contain
ecological geological, or other features of scientific,
educational, scenic, or historical value. [23]
197
The
Secretaries
structed
were
in-
Wilderness "to preserve
its
character...wilderness areas shall be devoted
public purposes
educational,
Act
the Interior and Agriculture
by Congress to manage
wilderness
the
of
of
recreational,
conservation
and historical
clearly prohibited certain uses:
commercial
enterprise
wilderness
area...no
and
scenic,
no
use."
[24]
road,
road
no
And the
within
use
vehicles,
motorized
equipment or motorboats,
aircraft,
no
form of mechanical
other
scientific,
"...there shall be no
permanent
temporary
of
were
not absolute;
any
motor
no landing of
transport,
and
structure or installation within any such area." [25]
prohibitions
to
exceptions were
no
These
permitted
where necessary to administer the Act's provisions and manage
the
wilderness
area,
as well as in the case of
emergencies
which threatened the the health or safety of individuals.
But,
while
Preservation
proponents
System
Wilderness
that is much more
Act
made
was
a
extensive
Wilderness
than
its
[26] it also permitted activities
that run counter
Congressional debate,
concession
Wilderness Act created
ever imagined,
within this system
The
The
the
to the wilderness
product
of
nine
negotiation and compromise.
by preservationists -- and
the
ideal.
years
of
The major
concession
that
finally led to the Act's passage -- was section
4(d)3.
This
section
forest
permits
mineral leasing
wilderness areas until December 31,
responsible
where
for
in
1983.
national
This provision is
considerable conflict today about
oil and gas exploration and development may
198
how
and
occur
on
public lands.
Section 4(d)3 specifically permits:
use of the land for mineral location and development
and exploration,
drilling, and production, and use of
land for transmission lines, waterlines, telephone
lines, or facilities necessary in exploring, drilling,
producing,
mining,
and
processing
operations,
including where essential the use of mechanized ground
or
air
equipment
and restoration
as
near
as
practicable
of the surface of the land disturbed
in
performing prospecting,
location, and, in oil and gas
leasing, discovery work, exploration, drilling, and
production, as soon as they have served their purpose.
[27]
The
provision permits the Secretary of Agriculture to attach
"reasonable
licenses
stipulations"
in
wilderness
Wilderness
character
Initially,
to mineral
areas "for the
of the land."
this
leases,
provision
was passed in 1964,
unwritten
protection
of
the
posed
little
threat
to
Since the Wilderness
the Forest Service has followed
policy of not issuing leases in Wilderness
is
under attack
an
Areas.
Until recently this policy has gone unchallenged. [29]
it
and
[28]
Wilderness; today it is creating havoc.
Act
permits
because of at least four changes
Today
in
the
oil and gas exploration and development environment.
First,
several
major
oil
and
attracted industry interest into new
the
discovery
interest
Western
of Utah's Pineview
gas
discoveries
territories.
have
Notably,
Field in 1977 led to
major
and further discoveries in what is now known as the
Overthrust Belt.
Similar activity is occurring
the
Eastern United States along the Eastern Overthrust
and
in Michigan's Northern Lower Peninsula.
previously
ignored
USFS
lands now look more
199
As
a
in
Belt
result,
promising
to
industry.
[30]
Second,
technology
oil
and
gas
exploration
has improved markedly.
and
development
Industry is now able
to
drill deeper to explore previously inaccessible yet promising
formations.
more
Additionally,
acute
impeded
drilling
explored
Thus,
poses
angles.
Where
previously
of
thought
problem
be
less
likely to be discouraged
construction,
development,
more
increased
site.
Overthrust
Belt
[31]
prices,
areas
marginal
or
As a result, industry
by the
difficult
have
drill
economically
at
can now be
than in the past.
inaccessible now warrant exploration.
is
the
skyrocketing energy
to
might
the same formation
terrain above
less of an engineering
because
terrain
from a more manageable
mountainous
Third,
difficult
in the past,
directionally
the
industry can now drill wells
more
terrain
costly
for
road
wellsite
environmental safeguards and
winter
weather obstacles in backcountry wilderness areas. [32]
Finally, political pressures to increase domestic energy
production are heightening.
are
being
Federal land management agencies
discouraged by Congress from holding
from leasing and exploration.
Regardless
back
lands
[33]
of Section 4(d)3's
legislative
legitimacy,
preservationists
still oppose energy or mineral
development
in
Areas
Wilderness
emergency.
are
except
if
justified
by
national
They argue that the protective phrases of the Act
too weak.
[34]
(Some wilderness areas
issued before their designation as Wilderness.
200
contain
leases
Consequently,
these
leases
them.
The
have
no protective stipulations
government
after the fact without
lacks power to
agreement
such an act would constitute
of the government.
to
such
behind
practicable"
the
not
still
permits
Leases
During
the
the
phrase
intruded
preservationists
that period,
and
"restoration
upon
at
31,
gas resources,
2000,
areas
long
all.
state then
[35]
31,
Finally,
1983
deadline
that
even though the
submitting
If the permit
oil
the Act's December
[36]
date.
1983 are valid for ten years.
develop
leasehold
is
an application
is granted,
and gas
the clock
if
warranted,
production
could easily extend well beyond
issuing new leases.
it
Hypothetically, lessees could hold
Consequently,
after
as
They argue that if
stopped until exploration and production,
completed.
the
near
the lessee has a legal right to
for a permit to drill.
Wilderness
question
as
to its wilderness
their leases for 9 1/2 years before
are
on the part
exploration and production after
located in a Wilderness.
is
also
note that the December
issued on December
oil
Otherwise,
of contract
Preservationists
be restored
be
stipulations
lessee.
of mined or drilled lands.
land cannot
should
a breach
attach
to
Lessees, though, lack incentives to agree
conditions.)
rationale
of the
attached
31,
in
the
year
1983 deadline
for
December 31, 1983 will hardly mark
the end to this debate.
Once
wilderness
preservation became
law,
the
Forest
Service
was
terms.
But, Congress' message was still vague and left much
forced to deal with these
201
lands
on
Congress'
to
the
couched
The
Forest Service's discretion.
The
in
left much
laudable but broad terms,
Wilderness
Act,
undefined.
two decades following its passage have been filled
debate
over
whether or not specific areas
broad provisions of the act.
area
Debate has
fall
with
under
the
raged over when an
"generally appears" to be in its natural state with the
work
of
man
"substantially
unnoticeable."
determinations are highly subjective;
unnoticeable"
to
what is "substantially
one evaluator can be a glaring
defect
another.
Debate has also centered on when an area
"features
of scientific,
value."
[37]
judgment
Again,
about
the
educational,
making
relative
this
...the
to
contains
scenic or historical
determination
values of
an
commercial values outweigh scenic values?
view has differed
These
requires
area;
when
do
The Forest Service
from that of preservationists:
agency
compliance
committed
itself
to
impeccable
with the letter of the law and fulfilled
it
thoroughly
insofar as the primitive
areas
and
wilderness areas are concerned.
Its attitude toward
potential additional areas, or even to consideration
of
any,
is
quite another story,
one of
consistent
resistance to proposals of new wilderness, endless
confrontations with citizen groups in virtually all
parts of the country, often ending with officially
sanctioned intrusion and commercial exploitation of
the contested regions so as to render
"invalid." [38]
Disagreement
over
Roadless
Area
programs
by
areas,
not
areas,"
Wilderness
the
Act's
intent
led
the
to
Review and Evaluation (RARE I
wilderness
two
and
RARE
the USFS in which all national forest
just the administratively classified
were
evaluated
system.
[39]
for
possible
Because of
202
recent
II)
roadless
"primitive
inclusion
a
massive
in
the
California
District
Court ruling that the Forest Service RARE II EIS is
inadequate, the Forest Service announced in February 1983 its
plans to scrap RARE II and commence a new,
RARE III process.
[40]
While questions of wilderness designation and management
have
dominated
statutes
many oil and
have
an
decisionmaking.
gas
important
leasing
role
in
disputes,
Forest
other
Service
Combined, these acts increase Forest Service
discretion at the same time as increasing the influence
over
decisionmaking of different public land user groups.
The Wild and Scenic Rivers Act
The great rivers of this country represent vestiges of
a frontier America where waterways were the highways
to exploration and development. Today, these wondrous
resources
have
fallen
victim
to
excessive
industrialization, abusive land use, and an overall
move to commercialize the recreational value of freeflowing
rivers....[they] are now in
danger
of
extinction.
There
are
[41]
few
remaining
river systems
in
the
United
States
that are unencumbered from their headwaters to
mouth.
Responding to the unbridled development, particularly
for
power generation,
of the nation's few
their
remaining
free-
flowing
rivers,
Congress enacted the Wild and Scenic Rivers
Act
October
1968.
in
[42]
The
battles
leading
to
its
enactment were not as lengthy as those for the Wilderness Act
but
they
were
ideological
Scenic
fought
issues.
Rivers
Act
by the same
groups
Like The Wilderness Act,
established a "Wild
203
and
over
the
the Wild
Scenic
same
and
Rivers
System."
Unlike the National Wilderness Preservation System,
though, there were three different components of the Wild and
Scenic Rivers System -- wild,
scenic and recreational rivers
-- each
levels
receiving
again,
Congress
objectives
different
expressed
to
be
its
implemented
of
protection.
laudable yet
broad
by
public
federal
Once
policy
land
management agencies:
It
is
hereby
declared
to be the policy of the
United
States that certain selected rivers of the Nation
which,
with their immediate environments, possess
outstandingly
remarkable
scenic,
recreational,
geologic, fish and wildlife, historic, cultural, or
other similar values, shall be preserved in freeflowing condition, and that they and their immediate
environments
enjoyment
In
enacting
concerned
shall
be protected
for the
benefit
of present and future generations.
this
about
legislation,
rivers
where
Congress
"there
is
was
and
[43]
especially
the
greatest
likelihood of developments which, if undertaken, would render
the
rivers unsuitable for inclusion in the national wild and
scenic
rivers
designated
system." [44]
Thus,
the
Act
required
the
federal agencies to make decisions in areas where
conflict between different resource demands was most intense.
In
federal
administering the Act,
agencies
"esthetic,
features"
values
that
all
give "primary emphasis" to protecting
the
scenic,
historic,
of these rivers.
administered
in
that caused
Congress mandated
[45]
archaeologic,
A protected
and scientific
river is to
such manner as to protect and enhance
it to be included
Congress defined
in said system."
be
the
[46]
Wild Rivers as:
Those rivers or sections of rivers that are free
impoundments and generally inaccessible except
204
of
by
trail,
with
watersheds or shorelines essentially
primitive and waters unpolluted.
These represent the
vestiges of primitive America. [47]
Scenic Rivers were defined as:
Those
rivers
or sections
of rivers that are
free
of
impoundments,
with shorelines or watersheds still
largely primitive and shorelines largely undeveloped,
but accessible
in places by roads.
[48]
Finally, Recreational Rivers were defined as:
Those rivers or sections of rivers that are readily
accessible by road or railroad, that may have some
development along their shorelines, and that may have
undergone some impoundment or diversion in the past.
[49]
The Wild and Scenic Rivers Act withdraws one-quarter
a
mile
of
mineral
on either
leasing laws.
remain
side of a wild
[50] Scenic and
under the provisions
subject
and
land
river
from
recreational
of the mineral
leasing
of
the
rivers
laws
but
to conditions imposed by the Secretaries of Interior
Agriculture
Rivers
can
to safeguard
still
be
the
leased
areas.
but
only
Potential
with
Wild
sufficient
safeguards to protect them should they eventually become part
of the System. [51]
resource
Because those areas where non-commercial
values conflict with oil and gas activities are the
few remaining wild areas on national forest lands, it follows
that
these
same
lands,
having not
commercial development activities,
rivers
running through them.
yet
been
exposed
will have relatively pure
(The Snake River is a proposed
Wild River that caused environmental concern over leasing
Wyoming's
Creek.)
in
these
Palisades
Consequently,
areas
area
and drilling
proposals
inevitably
205
to
are
in
to explore
opposed
Little
in
Granite
for oil and gas
by
groups
and
individuals
advocating
protection.
caught
a
wild
river's
designation
and
Once again, the federal public land managers are
in
the middle,
forced to make
decisions
objectives they are to satisfy clearly conflict.
when
the
Once again,
broad standards such as "outstandingly remarkable" values are
subject to debate between those favoring and those opposing a
river's designation.
The Endangered Species Act
In
[52]
Congress enacted the Endangered Species
The provisions
that
in
1973,
of this act have a role that
Act.
surpasses
of The Wilderness Act or the Wild and Scenic Rivers Act
oil
and gas decisionmaking
provides
for
threatened.
two
categories
Section
for
of
public
lands.
species:
The
Act
endangered
and
7 of the Act requires federal agencies
to take actions necessary to protect endangered or threatened
species habitat.
the
effects
decisions
called
of
on
a
Thus,
its
the US Forest Service must evaluate
oil and
gas
leasing
or
exploration
endangered or threatened species
"biological
review."
Should
in
what
is
their
assessment
conclude that critical habitat may be modified or
destroyed,
the
agencies
are required
to consult with the US
Fish
and
Wildlife Service (FWS). When consultation is required, the US
Fish
and
Wildlife Service's regional director
completes
a
"threshold examination" to determine what effect, if any, the
proposed
activity
critical habitat.
will
have
on a listed
species
or
No further consultation between the
206
its
USFS
and
FWS is required
no
threat
to
if this examination
the species.
jeopardize a species,
indicates
Should the
little
proposed
or
activity
however, the FWS renders a "biological
opinion" developed from information provided by the US Forest
Service.
This opinion includes recommended modifications to
the proposed activity to protect the species.
is not bound to comply with the findings
and
While the USFS
recommendations
in this opinion, failure to do so can lead to court action by
either
the
Fish and Wildlife
Service or a private
group
or
individual. [53]
Section 11(g) provides for citizen lawsuits
when
is
an
agency
not
perceived
to
be
fulfilling
its
responsibilities.
Current
to
case law has interpretted Section 7 of the
imply "an explicit
Congressional
decision
to afford
Act
first
priority to the declared national policy of saving endangered
species." [54]
paramount
in
Hence, endangered species protection is to be
land
management
decisionmaking,
regards to the mineral leasing laws.
even
with
Moreover, in one recent
case the judge ruled that "any contract which [the Secretary]
enters
into (e.g., a lease) which requires
his part
(e.g., approval
term
condition
a
of plans)
a future action on
will contain as an implied
that the Secretary will
behave
lawfully
(e.g., not
violate the Endangered Species Act)."
added) [55]
In other words, under the Endangered Species Act
an
Application
for
a Permit to Drill
can
(emphasis
conceivably
be
denied even though a lessee holds the rights to an area's oil
and gas resources.
207
As
oil and gas industry interest has spread to the more
primitive
Species
more
and wild public lands,
the role of the
Endangered
Act in leasing and exploration decisions has
frequent.
Marshall
Exploration
proposals
in
become
Montana's
Wilderness have been opposed because they
Bob
threaten
one of few remaining habitats of the endangered Grizzly Bear,
[56]
Leasing proposals in a Wyoming wilderness
potentially
Bear,
threaten
Bald
proposals
Eagle
the endangered or
and
Peregrine
study
threatened
Falcon.
[57]
area
Grizzly
Leasing
in a California national forest threaten the
only
remaining California Condor nesting area. [58]
The Federal Clean Air and Water Acts
Additionally,
[59]
by
gas
certain
provisions of the Clean Air
Act
and the Federal Water Pollution Control Act (as amended
the Clean Water Act)
60] affect Forest Service
leasing and exploration decisions.
oil
and
Many proposed areas
subject to mineral leasing disputes are in those undeveloped,
pristine backcountry areas that have been assigned "Class
status under both acts.
and
water
quality
I"
This status means that existing air
levels
cannot
be
"significantly"
deteriorated or degraded. [61]
Multiple-UseeMandates and Procedural Requirements
In addition to considering the preservation mandates
of
each of the previously described statutes, the Forest Service
must
also
fulfill the broader mandates of the
208
Multiple-Use
Sustained-Yield
environmental
Act
of
concerns
1960.
are
[62] And,
considered
to
in
ensure
that
decisionmaking,
Congress passed the National Environmental Policy Act in 1969
[63] and National
acts
an
Forest Management
Act in 1976.
impose procedural requirements as a way of
understanding
of
and
planning
for
(64]
Both
encouraging
the
long-term
consequences of particular decisions.
In
the 1960 Multiple-Use Sustained-Yield Act,
established
its policy that the national forests
administered
watershed,
for
outdoor
recreation,
Congress
"shall
range,
timber,
and wildlife and fish purposes." [65] The Act was
passed in the midst of debate over the Wilderness Act,
four years shy of enactment.
that
wilderness
was
Multiple-Use Act.
manage
be
"all
still
Regardless, Congress specified
consistent
with
its
intent
in
the
Congress instructed the Forest Service to
the various renewable surface resources of
the
national forests so that they are utilized in the combination
that
It
will best meet the needs of the American people."
further required
coordinated...without
land,
impairment
be "harmonious
of the productivity
of
with consideration being given to the relative
of the various
of
that this management
uses
that
resources,
and not necessarily
Policy and Management
Similarly,
the policy of the United
the
values
or
in the Federal
Act of 1976, Congress
and
the combination
will give the greatest dollar return
greatest unit output." [67]
[66]
declared
the
Land
it to be
States that:
the public lands be managed in a manner that will
protect the quality of scientific, scenic, historical,
209
ecological, environmental, air and atmospheric, water
resource,
and archaeological values;
that, where
appropriate, will preserve and protect public lands in
their
natural condition;
that will provide
food
and
habitat for fish and wildlife and domestic animals, and
that will provide for outdoor recreation and human
occupancy
and use; and,
the
public lands be managed in a manner
which
recognizes the Nation's need for domestic sources of
minerals, food, timber and fiber from the public lands.
[68]
Additionally,
in
the Federal Land Policy and Management Act
Congress again required harmonious decisionmaking:
in administering public land statutes and exercising
discretionary authority granted by them, the Secretary
[is] required to establish comprehensive rules and
regulations after considering the views of the general
public; and to structure adjudication procedures to
assure adequate third party participation, objective
administrative
review of initial
decisions,
and
expeditious decisionmaking. [69]
Rather
mandates
only
satisfied
the
than
increased
resolved;
is
benefit
the number
of
made,
objectives
these
to
be
by land managers with no direction given as to how
inevitable
what
bounding the decisions to be
how
at
some
conflict
between
objectives
should
be
can these decisions be made "harmonious" when
stake is so great and
at
the expense
of
when
decisions
others?
How
clearly
would
the
conflict generated between different groups competing for use
of
the
same
harmonious?
these
lands be resolved so that
decisions
will
be
Congress apparently thought that the answers to
questions
would
come from involving
the
public
in
decisions and from rationalizing the decisionmaking process.
To
ensure that land managers consider the
of their decisions
on all facets of natural
210
consequences
resource
use, the
Forest
Service
Policy
Act
complete
that
must comply with the National
(NEPA).
NEPA requires
environmental
"significantly
environment."
descriptions
the
federal
impact statements for any
affect
[70]
of
that
Environmental
the
These
quality
of
statements
unavoidable
agencies
decisions
the
human
must
adverse
include
impacts
of
the
decision, alternatives to the decision, the short-term versus
long-term
consequences
irreversible
resulting
and
irretrievable
from the decision.
objectives
of
completing
these
Who
for
the
productivity,
and
commitments
resources"
[71]
natural
of
But, like the substantive
resource
management
statements is also a
Bacow
adverse and when is it actually a
from
requirements:
the
potentially
process.
When is an
benefit?
has discussed the inherent difficulties in
NEPA's
statutes,
subjective
defines what a "reasonable alternative" is?
impact
"any
Lawrence
fulfilling
Which alternatives should be selected
endless
list?
How
should
public
officials assess impacts when subjective judgments about risk
and
acceptability must be made?
input
be obtained when problems are frequently
for public understanding?
and
other
Bacow
How and when should public
Finally,
too
complex
how might environmental
interests be "balanced" when all are
legitimate?
argues that the premise NEPA is based on -- "that
'right' information
is out there waiting
to be gathered
the
and,
once collected, it will help us find the 'right' solution" -is invalid.
is
that
the
He concludes
that: "The fallacy
source of conflict
211
in this argument
is over facts
when
it
is
usually
a
difference
these
decisions
stake
and
in beliefs
require
what is to
expertise
[72]
Most
value judgments about what
be
provides
or values."
gained.
limited
Once
again,
direction
in
of
is
at
technical
making
such
decisions.
In addition,
Planning
Act
Management
of
Act
comprehensive
revised
plans
in the Forest and Range Renewable Resource
1974 (as amended by
of
1976)
land-use
management
be
Forest
"considered
Congress
System.
with
the
for
a
Forest
required
that
periodically
Moreover,
land
and
planning processes of state and local
federal agencies." [74]
called
National
plans be developed and
for the National
must
[73]
the
these
resource
and
other
In fulfilling this mandate, Congress
"systematic
interdisciplinary
approach
to
achieve the integrated consideration of physical, biological,
economic
must
and other sciences." [75]
Consequently,
now coordinate oil and gas exploration and
decisions
with
decisionmaking
National
even
Forest
plans
to
though plans themselves
the
USFS
development
help
guide
involve
value
judgments about appropriate uses.
When Senator Hubert H.
Humphrey introduced the National
Forest Management Act to the Senate floor he emphasized
"this bill is designed
the
courts
and
comprehensive
easier;
to
the
forests."
of forestry
[76]
out of
But,
planning effort and coordination with
administrative
any
back
to get the practice
that
this
routine
decisions has not made the land managers task
choices
still must be made
212
between
different
objectives.
Furthermore,
occasions
when
judgments
and,
Forest
only
it
increased the number
Service officials
thereby,
the
number
must
of
of
make
value
occasions
these
judgments can be called into question.
Mineral Leasing Reconfirmed
Just
as
the environmental
activism
of the
1960's
and
early 1970's produced many environmental protection laws,
crisis
energy
1980's
early
and a faltering
created
economy
statutes
and
reverse.
an
in the late 1970's and
a
political
As might
favoring
precisely
the
Congress
responded
to these new problems
be
in
climate
predicted,
like
manner.
Confronting an industry backlash at its earlier environmental
Congress
excesses,
new legislation reinforcing
passed
the
importance of mineral and fuels production from public lands.
Two
acts
were
passed
in
1980,
both
previous
hedging
environmental mandates without actually rescinding them.
In
and
the National Materials and Minerals Policy
Development
policies
Act of 1980,
established
instructed
the
in
[77] Congress
the
mineral
Research
reinforced
leasing
laws.
president to "encourage Federal agencies
the
It
to
facilitate availability and development of domestic resources
to
meet
mandates,
critical materials needs."
this
But,
like
development was not to be encouraged at
expense of all other resource values.
that
[78]
"appropriate
attention"
past
the
Congress made it clear
was to be given "to a long-term
balance between resource production,
213
energy use,
a
healthy
environment,
natural
needs." [79]
Act
of
conservation,
and
[80]
It specifically
instructed
the
its
Forest
to promptly process all oil and gas lease and permit
applications forwarded to it by the BLM or USGS.
could
social
Congress was more direct in the Energy Security
1980.
Service
resource
The
agency
no longer defer these decisions pending completion
long-term
planning processes mandated by
the
of
National
Forest Management Act of 1976:
It
is
the intent of Congress
that the
Secretary
of
Agriculture shall process applications for leases on
National Forest System lands and for permits to
explore, drill and develop resources on lands leased
for the Forest Service, notwithstanding the current
status of any plan being prepared... [81]
In
these
which
Acts Congress once again reinforced the extent
natural
resource objectives compete
and
once
to
again
shifted the tough decisions to the land management agencies.
As
seen in the cases discussed
management
times,
fails
philosophies
is
3,
the
paradigm that directed decisionmaking in
accommodated.
them
in Chapter
when
these
more recent
objectives
The clash of the conservation
by
the
Bob
earlier
must
be
and preservation
and the inability of the paradigm
well-illustrated
land
to
reconcile
Marshall
dispute
discussed below.
Making
Case
Decisions When Objectives Conflict:
The
continental
acre
Bob
Bob
Marshall
divide
ecosystem
in Montana.
Marshall Wilderness
214
straddles
At its heart
Area,
The Bob Marshall
150 miles of
the
is the 1-million
officially
designated
Wilderness in 1964 when the Wilderness Act was
its
north
lies
(designated
the
in
286,700
acre
Great
enacted.
Bear
1978) and to its south is the
Wilderness
240,000
Lincoln-Scapegoat Wilderness (designated in 1972).
Bob
Marshall
Wilderness
preservationists
Environmental
process
as
been
"the quintessence
groups
believe
has
following the
acre
[82]
The
described
by
of wilderness."
wilderness
it to be the crown jewel
To
of
[83]
designation
the
National
Wilderness Preservation System. [84]
In early
Denver,
1979,
Consolidated
Colorado,
Georex
Geophysics
geophysical exploration firm,
(CGG),
a
applied to
the USFS Northern Region for a prospecting permit to
conduct
seismic testing in the Bob Marshall,
Great Bear and Lincoln-
Scapegoat
national
Wilderness
adjacent
to
detonation
seismic
100
All
[85]
and
gas
along
the
line
included
would
to last
mile
be
lease
applications
numbering
by
approximately
for
the
areas began pouring into the district
Announcement
was
three
forester's
700 by 1982. [86]
of the proposed seismic testing
generated
outrage from both local and national environmental
organizations.
local
CGG's plans
lands
At the same time as CGG's application
office, eventually
immediate
access
and the testing was planned
oil
wilderness
forest
of 270,000 pounds of explosives along a 207
days.
filed,
and on
these wilderness areas.
line.
helicopter
Areas
The
individuals
organizations,
was
Bob Marshall Alliance,
and regional and
established
215
national
a coalition
of
environmental
to oppose any oil
and
gas
exploration
or
areas. [87]
They referred to the proposed seismic testing as
"bombing
slashing
the
Bob"
and
exclaimed
Overthrust
proposed
habitats.
the
wilderness
would
be
"like
[88]
seismic study area sat atop
the
Western
Belt and thus could prove to be a major source
and gas.
harboring
into
that it
the face of the Mona Lisa."
The
oil
development intrusion
But,
it was also a pristine wilderness
one of the last remaining
Facing
this dilemma,
Coston chose to make a decision
endangered
area,
Grizzly
Regional Forester
of
Bear
Charles
based on a technicality.
In
so doing, he did not have to decide which objective (resource
preservation or domestic energy production) should prevail in
the
area.
Wilderness
obtained
While
CGG
areas,
from
did
it
seismic
not possess
intended
testing
to
to
any
sell
leases
the
several
in
the
information
oil
and
companies interested in obtaining leases there. [89]
gas
Because
CGG did not possess the leases, Coston ruled in April 1980:
It
is
my
policy not to consider
any
proposal
for
mineral activities within a national forest wilderness
unless the proposal is being specifically applied for
under the United States mining laws or law pertaining
to mineral
leasing.
[90]
Coston cited conflicts among "competing interests of multiple
resources"
in making
decision,
commenting
his decision.
that
"it
[91]
seems
He
justified
the
only
prudent
when
discretion rests with the agency, that the conflict should be
avoided."
[92]
But, Coston's decision hardly "avoided" conflict.
environmentalists
were jubilant,
216
praising Coston's
While
action,
[93]
CGG
Chief
appealed
the Regional
Max Peterson.
Forester's
decision
to
USFS
CGG was supported in its appeal by the
Mountain States Legal Foundation (MSLF), an industry interest
group,
and
the
Rocky
Mountain
Oil
and
Gas
Association
(RMOGA).
[94]
the
Marshall Alliance immediately submitted
Bob
The Sierra Club,
The Wilderness Society
their
and
own
briefs to USFS Chief Peterson supporting Coston's decision.
One year later,
CGG's
application
reconsideration.
Energy
Act,
back
to
Regional
not
Coston
of
the
because
it
lacked
Peterson
leases
to
the
was
of
all
values
Coston was forced to make a decision on the
merits
lying in those wildernesses."
of CGG's proposal.
[95]
In late May, 1981, the regional forester
denied CGG's permit,
operations
area
told Coston that "the citizens
United States have an interest in assessing
again
mineral
He ruled that Coston's decision to deny CGG's
inappropriate.
Now
for
as well as the Wilderness
interfere with the operation
leasing laws.
application
Forester
He cited the USFS responsibility under the
and Minerals Security Act,
to
the
in April 1981, USFS Chief Peterson sent
conflict
with
this time ruling
significant
that
wildlife,
"seismic
geologic,
scenic and recreation values." [96] Again, environmentalists
were jubilant.
Again,
CGG,
MSLF and RMOGA began preparing
administrative appeals of the Regional Forester's decision as
well
the
as lawsuits against the agency.
Regional
rest.
Forester's
decision
[97] And,
hardly
put
the
once again,
issue
to
While CGG, MSLF and RMOGA prepared new administrative
217
appeals
and
laid
environmentalists
plans
for a lawsuit
pressured
Congress
against
to
take
the
USFS,
action
to
protect the Bob Marshall Wilderness. [98]
CGG's
corner.
proposal
placed
Regional Forester Coston
in
a
His position gave him responsibility for preserving
wilderness
values as well as fulfilling
mineral leasing laws.
In this case,
the provisions
however,
it
of the
appeared
impossible to accomplish both. Regardless, Coston had to make
a decision.
Whichever objective he fulfilled, he was doomed
to encounter opposition.
any
decision
basis
No decision was obviously correct;
could be supported as well as opposed
on
of federal natural resource and land management
the
laws.
Coston's training as a professional forester did not help him
find
a
judgment
MSLF
path
out of this corner.
He had to
as to which resource values should
exercise
prevail.
his
CGG,
and RMOGA assessed this situation differently and
took
Coston to court.
Why the Congressional Inconsistencies?
As
and
seen,
Congress has delegated broad responsibilities
considerable decisionmaking discretion
land managers.
technical
ability
professional
This legislation implicitly assumes that the
expertise
to
to
of
establish
the land managers
gives
the "relative values of
them
the
the
various
resources" and thus equips them to reach decisions that "best
meet
the
needs
of
the American
people."
In
so
doing,
Congress reconfirmed the paradigm established consistent with
218
the
conservation ideal while in the same
voice
undermining
the ideal itself.
"Relative
values"
individuals.
decision;
gas
Technical
for
different
expertise
value judgments
does
objective
supporting
might
to
satisfy.
A
Forest
mineral exploration or development,
In
objectives
to
professional
oil and
choose
decision
for example,
like
protection
manner,
to
expressed
promote
legislative
domestic
judgment
exercised
energy
and
a
executive
production.
by the Forest
The
Service
such choices can easily be questionned by groups
the
resources at stake differently
legitimately reach
While
a
to prohibit oil and gas activity in a specific area
contrary
value
Service
and
to
in making
completely undermine an endangered species
decision
making
lead
the USFS must
wilderness preservation objective.
runs
groups
not
do. As a result,
leasing and permitting decisions,
which
or
differ
and
who
in
who
thereby
different conclusions.
many blame Congress for the current stalemate
in
land management, Congress in reality had little choice but to
act
as it did.
As a representative
the
demands
many
difficult
1960s
of
social
different
constituent
and 1970s could only be resolved
all concerns.
was able to garner support,
decisions.
it is attuned
groups.
choice problems placed on its lap
that tried to accommodate
their
body,
Congressmen
constituencies
through
in
to
The
the
compromises
In so doing, Congress
rather than opposition,
for its
last but short terms if they ignore
and support
219
unfavorable
legislation.
But,
as seen,
difficulty
every
for
Congress' responsiveness only compounded
of the land managers
conceivable
then choosing
case,
the
use takes priority
cannot
in
a
ignored.
control,
[99]
endangered
There
is little
species
cost
designation,
preservation,
and
protection.
And,
disillusioned
with the results of a technological
ecological
statements.
making broad,
faltering
in fact,
travesties,
tossed
like a hot potato.
legislators in supporting wilderness
planning
particular
symbolic dimension of these Congressional
be
almost
guidelines
land use allocation decisions were
back to the Forest Service
The
By legitimizing
public land use without clear
which
tough
task.
the
to
most
pollution
watershed
when much of society has become
there
Furthermore,
mandates
era and its
is much to be gained by
such
there are few political costs
to
seemingly reasonable demands for comprehensive
of forest resources.
and the nation
And,
when the economy begins
seems to be suffering
at the
hands
of OPEC, it would be more costly to ignore the situation than
to
establish
policies promoting domestic energy
production
and thereby independence from foreign forces.
But,
symbolic
gestures
by Congress are not
the
reason these natural resource objectives are vague and
conflicting.
action
river
are
real constraints on
on specific issues,
involving
expect
There
the public
Congress
lands.
often
Congressional
especially as complex
[100]
only
as
those
It would be infeasible
to
to specifically decide which wilderness
or
is preserved,
which timber sale is offered
220
or
which
endangered species is protected.
information
an
resources and
needed to make these decisions would only burden
already-overloaded
system
The time,
of
Congressional
government is structured
agenda.
with
Hence,
Congress
our
setting
policy and the bureaucracy then implementing that policy.
Additionally,
these
there are real political costs to
decisions Congressionally,
the time and resources.
administrative,
not
Because
making
even should Congress
implementation
legislative,
level,
have
occurs at the
Congress does not
have to make site-specific decisions in which the bottom-line
costs
and benefits of achieving its broad policy
are exposed
equation
is
for all to see.
is passed
Instead,
consequence
is
this latter
on to the administrative
there that the tough decisions
that
must
Congress'
be
broad
them
back
side of the
agencies
and
it
made.
But,
the
policies
have
not
resolved the disputes between competing groups;
shifted
objectives
to the administrative arena
they
merely
where
they
originated.
Because
Service
of
finds
objectives.
these Congressional
itself
And,
confronting
mandates,
many
the
Forest
competing
policy
in each site-specific case,
it must make
the political resource allocation decisions that Congress was
either
unable
implementation
problematic.
unwilling
of
Congressional
[101]
misinterpretation
undermines
or
of
policies.
to
make.
mandates
Bureaucratic
Congressional
inaction
Administrative
is
or
mandates
inherently
purposeful
frequently
Such inaction is seldom a problem
221
in
natural
that
to
resource decisionmaking,
though,
for those
groups
fought for the legislation in the first place now fight
ensure that it is implemented as
like
they
groups
behave
unlike
Bardach's "fixer" -- the legislator
intended.
Eugene Bardach's "fixer."
These
[102]
But,
responsible
for
a particular policy through the legislature -- these
guiding
policy
public
land
Their
voices
and
administrative
"fixers"
to
are external
frequent
lawsuits
do
the
not
process.
allow
agency to overlook or ignore those
provisions
that
discovered
in
advance their concerns.
his
analysis
of the
an
statutory
As Steven
implementation
Yaffee
of
the
federal Endangered Species Act:
Constituent support is one of the
initiators
of
external pressures
bureaucracy into action.
most effective
to force
the
These groups...petition;
they provide data; they
educate; they lobby; they threaten legal action.
Their actions account for many of the [endangered
species] listings that were finally made. [103]
Because the broad national resource mandates have legitimized
their
claims,
which
to
it has given public land "fixers" power
question administrative decisions in
This distribution of power,
within
are
But,
made.
courts.
combined with the willingness of
the courts to hear these cases,
environment
the
with
has dramatically changed the
which current land management
just as in the administrative
decisions
arena,
the
courts have had difficulty responding to the competing claims
of equally legitimate parties.
222
The Limits and Consequences of Judicial Review
In 1977, the Forest Service mistakenly issued leases for
a wilderness area within the White River National Forest.
a
result,
leases.
no
When
protective stipulations were attached to
the
error
was
discovered,
Forest
As
the
Service
officials had several options, none of which were attractive.
Regional Forester decided not to do anything to
The
rectify
the error, reasoning that the agency would be sued regardless
of what it did:
The possibilities
as we saw them:
we may be sued for
special
of agreeing to lease without
character protection stipulations; we may
the error
wilderness
be sued for permitting operations on the lease without
a full EIS; we may be sued for agreeing to lease even
with
protective stipulations;
or we may be sued
the
not honoring a contractual obligation of
States.
I chose to honor the contract. [104]
for
United
Increasingly,
the Forest Service is finding itself defending
its
in court.
decisions
During and before the
Forest Service never had more than one,
cases
questionning
single time.
administrative
1960's,
possibly two,
one
court
decisions pending
at
a
Today a forestry attorney in the Department of
Agriculture's Office of the General Counsel puts that
between
the
and
two
dozen.
[105]
This
figure
outcome
of
decisionmaking occurs so frequently that agency officials are
the
broad
legislative mandates under which the agency operates,
almost
resigned
every
to
its
inevitablity.
Because
of
decision made is susceptible to judicial review by
an
adversely affected individual or group.
On
the
one
hand,
while there has been
223
a
decreasing
confidence in the Forest Service and,
agencies
in
increased
general,
reliance
on the other hand there has
on
the
administrative decisions.
Leventhal
indeed, administrative
commented,
courts
to
review
been
an
contested
As U.S. Circuit Court Judge Harold
the
courts have come
to
share
"the
public
sense of urgency reflected in the new [environmental]
laws."
[106]
role
and
More generally,
consequences
in his review of the
of courts
in
social
growing
policymaking,
Donald Horowitz observed:
...American
courts have been more open to
new
challenges, more willing to take on new tasks.
This
has encouraged others to push problems their way -- so
much
so
that no courts anywhere have
greater
responsibility for making public policy than the
courts of the United States.
Hence
it
public
is
land
[107]
not surprising to see the success
users have taken their cases to the
hopes of redressing administrative wrongs.
address
There
in
by definition,
by
the
As Horowitz observed:
is an undeniable
method.
puts
courts
the fairness issues allegedly ignored
administrative branch.
which
What better place
to take one's problems that to a "judge" who,
will
with
attractiveness
In its pristine form,
all the arguments
before
to the judicial
the adversary process
the decisionmaker
in
a
setting in which he must act.
The judge must decide
the case and justify his decision by reference to
evidence
and reasoning.
In the other branches,
it is
relatively easy to stop a decision from being made -they often effectively say no by saying nothing.
In
the judicial process, questions get answers.
It is
difficult to prevent a judicial decision.
No other
public or private institution is bound to be so
responsive.
But,
of
[108]
while such reasoning places the judiciary on a pedestal
responsiveness,
it
presents
224
but a fraction
of
a
much
larger picture.
The
Horowitz goes on to note that:
fact
that there are fewer
adjudicative
participants
in
process than in the legislative
the
process
makes it easier for judges than for legislators to cut
through
the problem
to a resolution.
But
it is
precisely
this ability to simplify the issues and
to
exclude interested participants that may put the
judges in danger of fostering reductionist solutions.
[109]
Because
judges
are
generalists
and
because
issues
are
the courts are not always the
most
necessarily
simplified,
appropriate
forum for resolving some social policy disputes.
In
policy,
analyzing
Horowitz
several
and
is centered
cases
involving
found that judicial review was
along several dimensions.
It
court
First,
inadequate
adjudication is focussed.
on the rights or duties
of different
parties
hence ignores discussion of alternative actions
resolution
Second,
of
the underlying disputes
it is piecemeal.
social
might
be
wherein
achieved.
It deals only with the case before
it. Third, it only takes action when cases are brought before
it.
In
this
sense,
it
is a passive
initiate action when needed.
historical
parties
are
body;
to a lawsuit," not social fact.
most often relevant
adjudication
provides
does
not
Fourth, adjudication focuses on
fact or "events that have transpired
those
it
no room
to
for
But,
between
social facts
policymaking.
planning.
the
By
Finally,
nature,
"judges base their decisions on antecedent facts, on behavior
that antedates the litigation."
critical
But, in social policy, it is
to plan for the future given the knowledge garnered
from past experience.
procedural,
As a result,
adjudicative
the courts address
the
issues but the larger substantive,
225
policy issues are frequently sidestepped.
In
the case of public
encountering
much
land management,
the courts
the same problem as Congress
are
-- how
to
choose between legitimate yet competing claims to public land
resources.
the
land
Just as there is no obviously correct decision to
manager,
to
right."
Judges,
case.
too
there is
judge.
decision
Congress'
so
the
no
obviously
It is a question
like administrators,
of
"fair"
vs.
"right
are also faced
with
on
obviously conflicting mandates when ruling
Because legislated objectives clearly conflict,
a
some
analysts argue that no Congressional intent actually exists:
...the new areas of [judicial] activity respond to...
new legislation so broad, so vague, so indeterminate,
as to pass the problem to the courts.
They then have
to
deal
with the inevitable
litigation
the "intent of Congress," which,
of course
nonexistent.
to
determine
in such statutes, is
[110]
With such flexibility in determining Congressional intent, it
is
only to be expected that many different perspectives have
been offered.
When
the Izaak Walton League sued the Forest Service to
prevent mining in northern Minnesota's Boundary Waters
Area
(BWCA), Minnesota's U.S.
decided
Neville
future
part
to
issue a
District Court Judge
permanent
of
the
Superior National Forest,
Philip
injunction
mining and mineral exploration there.
was
The
Canoe
against
BWCA,
designated
Wilderness when the Wilderness Act was passed in 1964.
a
as
Judge
Neville interpretted Congress' intent in this manner:
To create wilderness
for
its destruction
and in the same breath
could not have
been
226
to allow
the real
Congressional intent,
and a court should not construe
or presume an act of Congress
to be meaningless
if
an
alternative analysis is possible. [111]
He concluded
that:
It
is
clear
that
wilderness
and
mining
are
incompatible...If the premise is accepted that mining
activities and wilderness are opposing values and are
anathema each to the other, then it would seem that in
enacting the Wilderness Act, Congress engaged in an
exercise
of futility
if the court is to adopt the view
that
mineral
rights
prevail
over
wilderness
objectives.
Mineral
development
by
its
very
definition cannot take place in a wilderness area....
[112]
But,
the
encountering
Forest
Service
a similar question of whether or not
should defer
leasing
decisions
wilderness designation decisions were made,
Court
Judge
conflicting
Foundation
Clarence
Brimmer
issued
with Judge Neville's.
v. Andrus
Brimmer
In
until
Wyoming District
a
ruling
directly
Mountain States Legal
ruled that
decisions
on
the
leases could not be deferred:
It would surely be inconsistent with the intent to
keep lands designated as wilderness areas open until
December
31,
1983,
that
lands
merely
under
administrative study for a proposed wilderness area
may be effectively withdrawn from the leasing without
the consent of Congress.
Brimmer
commented
obligation
development
that it is the Secretary
"to provide
of
[113]
some incentive
oil and gas deposits
of the Interior's
for, and to promote
in
all
the
publicly-owned
lands of the United States through private enterprise." [114]
In
so
doing,
Wilderness
he interpretted
Act's
Congressional
Section 4(d)2 in
intent
precisely
the
in
The
opposite
manner as Judge Neville.
In
contrast,
in
a
case involving
227
a
timber
sale
on
national
forest lands adjacent to a proposed wilderness area
but itself possessing wilderness characteristics,
district
that
court
might
judge ruled that no
a Colorado
commercial
development
harm the area's wilderness attributes
could
allowed until after final wilderness decisions had been
by Congress.
from
be
made
He ruled that the Forest Service must "refrain
acts...which
will
irrevocably
change
[the
area's]
character until the President and Congress have...rendered
decision."
[115]
the development
and
The result of cases such as these has been
of a case law that is internally
that only shifts the dispute back to the
agencies.
a
inconsistent
administrative
The inherent conflict over the specific allocation
and management of national forest lands is seldom resolved.
As anyone,
for ruling
judges prefer to have some substantive basis
in a case.
But, the extent to which Congressional
objectives conflict forces the courts to focus on
issues
and not question the professional judgment
by the administrative
Court
procedural
Judge
court's
agencies.
For example,
ruling in Sierra Club v. Hardin
exercised
the US District
expressed
hesitation to question the substance of
a
the
decision
made by professional foresters:
Congress
has given no indication as to the weight
to
be assigned each value and it must be assumed that the
decision
as to the proper mix of
uses
within
any
particular
area is left to the sound
discretion
and
expertise of the Forest Service....
Having
investigated the framework in which
the
decision was made, the court is forbidden to go
further and substitute its decision in a discretionary
matter
But,
once
for that of the Secretary.
again,
ruling
[116]
in this manner
228
merely shifts
the
dispute back to the administrative arena.
But, how else is a
judge with no land management expertise to rule?
Because
procedural
most
issue,
administrative
and,
of
rulings
are
contradictory
made
leave
the
the
decisions
now
first
single
complicate
statutes
further
judicial
In oil and gas
procedural issues raised generally fall into two
The
a
resource
door open for
made.
on
rulings
implementation of natural
moreover,
review
court
cases
the
categories.
involves administrative responsibility under
the
National Environmental Policy Act and, more specifically, the
timing
of
category
environmental
impact
statements.
The
second
questions the authority of the Secretary to
impose
different conditions on leases issued.
In
Sierra Club v. Hathaway the Sierra Club argued
the land managers must complete an EIS
for
geothermal
resources.
government's
position.
occur
the
under
administrative
But,
agency
before issuing leases
the
judge
upheld
He ruled that no development
leases without
and
hence
future
that
that
decisions
an
EIS
the
could
by
should
the
be
prepared at that later time:
the lessee could not proceed beyond casual use until a
notice of intent or plan of operation had been
approved...the leasing decision therefore did not
represent a commitment of resources. [117]
This policy of deferring extensive environmental review until
specific
operating plans are submitted has been
both the Forest
and
Service and BLM.
gas leasing and exploration,
229
adopted
In a review of onshore
the Government
by
oil
Accounting
Office (GAO) reported:
With respect to oil and gas, both the Forest Service
and
the Bureau of Land Management have adopted
practices which allow them to continue processing
leases without committing themselves to approval of
future development operations.
They
incorporate
stipulations...into some leases which give the agency
control over whether development will eventually be
allowed under the lease. [118]
But,
USFS
Chief
R.
Max
Peterson
qualified
the
GAO's
seems to overstate the control
which
interpretation:
The
discussion
the agency maintains by stipulations.
The intent
of
the
(Forest Service) in developing stipulations is to
retain a degree of control over operations to assure
compliance with law...such stipulations do not reserve
full control to prevent future development.
We
believe the process of denying operations on the basis
of post lease environmental assessments is
more
complex than implied. The issuance of a lease carries
the
right
to
reasonable
use
and
the
post
lease
assessment normally only considers the "how to." [119]
But,
Peterson's
qualification contradicts
Service argument in the Palisades case.
in
the
Palisades
decision
and
argued
made
would
EIS.
irretrievable commitment of
Service
The
of
Sierra
prevent
resources.
expressed confidence that
environmental
exploration was proposed.
were
The leasing dispute
FPA centered on the significance
thus the need for an
Forest
its
impacts if and
But,
lease
when
Hence they argued that
the
Club
that the leasing decision was significant because
an
Forest
the
it
the
terms
specific
resources
not committed by the leasing decision but would be when
an APD was filed:
While
the
general
the
prelease
environmental
issues and concerns
wilderness
necessarily
be
option)
affected
that
by
analysis
treats
(such as preservation
would
lease
seriously
operations,
of
and
the
operations stage is the time to address most concerns.
230
[120]
The Regional Forester justified his decision to issue
without
leases
an EIS:
Mineral
deposits
are unique and
completely
unknown
prior to exploration and discovery.
To assume that a
NEPA
document
will or can explicitly define all the
unknowns and uncertainties of an undiscovered mineral
deposit is unrealistic. The Palisades FPA-EA fulfills
the
spirit
and
intent
of
NEPA
and
the
selected
alternative allows for at least two additional NEPA
actions should use and occupancy be required within
the FPA.
But,
ruled
[121]
in Environmental Defense Fund v. Andrus, the judge
that
such uncertainty was precisely the reason
EIS's
are required of federal agencies:
Section 102(c)'s requirement that the agency describe
the anticipated environmental effects of proposed
action
is subject to a rule of
reason.
The agency
need
not foresee the unforeseeable,
but by the same
token
neither can it avoid drafting an
impact
statement simply because describing the environmental
effects of and alternatives to particular agency
action involves some degree of forecasting.
And one
of
the
functions
of a NEPA statement
is to
indicate
the
extent to which environmental
effects
are
essentially unknown.
It must be remembered that the
basic thrust of an agency's responsibilities under
NEPA is to predict the environmental effects of
proposed action before the action is taken and those
effects fully known.
Reasonable forecasting and
speculation
While
Palisades
is thus implicit
contradicting
case,
in NEPA....
Forest Service
[122]
arguments
in
the
Chief Peterson's qualification is supported
by
a case involving BLM stipulations on oil and gas
leases.
In
1978,
Krulitz
issued
Department
an
of the Interior
opinion
characteristics"
of
BLM
stating
Solicitor
that
wilderness
the
study
"wilderness
areas
preserved until final wilderness decisions were
The
BLM
developed
its Wilderness
231
Leo
Inventory
must
made.
Handbook
be
[123]
and
interim management policies accordingly.
and
DOI's adoption
Association
areas
to
financial
Wyoming
to sue DOI and Krulitz
mineral
development.
to
its
Court
District
Krulitz's
of it led the Rocky Mountain
(RMOGA)
harm"
Krulitz's opinion
opinion
and
650
RMOGA
member
Judge Kerr
the
Oil and
to
cited
open
these
"irreparable
corporations.
interpretted
resulting
BLM
Gas
[124]
Solicitor
guidelines
and
Wilderness Protection Stipulation (WPS) to mean that "actions
which
have even a remote possibility of impairing an
for
suitability
because
the
wilderness designation
agency
cannot permit the
are
possible
characteristics to be destroyed before those
have
been
determined
not
to exist." [125]
area's
allowable
wilderness
characteristics
Kerr
referred
to
leases issued under such procedures as "shell" leases because
companies
holding
any exploration
The
them would be prohibited from
under
conducting
them:
argues that the inclusion of the
government
WPS
with the lease informs the lessee that development may
Such an argument is a poor
or may not be allowed.
Once again a lessee could
excuse for the end result.
continue
to pay rentals and not be allowed to develop
oil
gas....
and
Such
a system
of
issuing
"shell
leases" with no development rights is clearly
unconstitutional taking and is blatantly unfair
lessees.
A lease without
development
rights
is a mockery
an
to
of the
term lease. [126]
Judge
Kerr
concluded,
ruling
that
the
BLM
must
lease
wilderness study areas:
Energy
and resource development are critical to
this
point in time,
and
the erroneous
country
at this
interpretation of the law as given by the Solicitor is
by
clearly contrary to the law as enacted
not only
232
Congress,
interest.
But,
manner.
it is
[127]
other
also
counterproductive
public
judges have ruled in precisely the opposite
In the Palisades FPA case,
Washington D.C.
to
Sierra Club v. Peterson,
District Court Judge Aubrey Robinson
upheld
the
Forest Service contention when he ruled that an EIS
not
required
because
the stipulations
attached
to
was
these
leases would sufficiently protect surface resources:
the lessees may legally obligate themselves to lease
conditions that may result in the inability to explore
or develop;
take. [128]
Judge
that is knowing
risk the lessees wish
Robinson termed Judge Kerr's earlier ruling
v. Andrus
In
to be of "questionable
Alaska v. Andrus,
covering
oil
validity."
plaintiffs
in
to
RMOGA
[129]
challenged
and gas drilling in the Gulf of
an
EIS
Alaska.
They
argued that the alternative of attaching a termination clause
to the leases had not been considered.
the
plaintiffs contention,
clause
The court agreed with
arguing that such a
might provide "that the Secretary could
lease
if environmental
time
of
[130]
leasing,
In
lease
stipulations
similarly
But,
The
were
the judge supported
are
terminate
unknown or unforeseen
subsequently arose or
so doing,
development.
hazards,
termination
at the
discovered."
the argument
enforceable even
if
they
two cases.
that
prevent
Interior Board of Land Appeals has
in at least
a
ruled
[131]
in the Cache Creek and Little Granite Creek cases,
Interior Solicitor Lowell Madsen rendered an opinion directly
counter
to
those
that
support
233
the
enforceability
of
stipulations,
no
matter how stringent.
right and privelege
has "the exclusive
lessee
if "the pending
that
denied,
the
authority
course
permits
are
nugatory
his
inviolable
an
altered
Madsen's opinion critically
[132]
right...".
and
will have exceeded the scope of
have rendered
will
to drill"
for drilling
applications
Secretary
and
Madsen ruled that a
the
of events in the Cache Creek and Little Granite Creek
permitting cases discussed in Chapter 3.
the
ruling,
USGS/FS
did
EIS
not
Following Madsen's
a
contain
no
drill
alternative.
These
contradictory
court rulings and
not resolve,
only served to exacerbate,
have
on public
over oil and gas exploration
get
a
resources
decisions
concern.
than
involves
considerable
focus
on
that
the
next
unresolved
of
they
these
time
and
rehash
old
issues
of
Moreover, to gain access to the courts these groups
Frequently,
these
issues are not the same as the substantive issues
directly
underlying
to
substantive
the
must usually raise a procedural question.
procedural
of the
believe
review
part of all parties just
the
rather
issues
Judicial
favorable ruling.
on
conflict
Because
those courts where they
select
administrative
the
Moreover, they encourage groups to
administrative agencies.
will
lands.
opinions
they provide little guidance to
range of different opinions,
strategically
legal
concern
the
plaintiffs.
disputes are not resolved,
forum
where
they
can
And,
since
they merely flow into
again
be
debated.
leasing dispute inevitably arises again when
234
the
An
an
APD is filed.
the
For example, should an APD now be filed under
Palisades
exploration
ruling
leases,
may
disputes
over
whether
occur is guaranteed to occur;
or
the
how
judge's
in this case has left the door open for this outcome.
A Problem Compounded by Uncertainty
Making
exploration
decisions
may
about
occur
on
how
and
where
national forest
oil
and
gas
is
made
lands
difficult by the many competing objectives under which
decisions must be made.
the
only
contend
difficulty
But, these varied objectives are not
with
which the
in decisionmaking.
decisions
are
these
shrouded
Forest
To make
Service
matters
in uncertainty.
must
worse,
Not only
these
is
the
Forest Service unable to make a "measurably correct" decision
because
objectives
understand
after
the
conflict,
to
fully
consequences of alternative decisions
until
they are implemented.
proven
"measurably
Likewise,
it is also not able
any
Consequently,
no decision
correct" at the time that
decision
reached
can
it
be
can be
is
made.
legitimately
questionned.
A
lease confers
located
lease
use
beneath a particular tract of land.
legitimizes
of
the
permission
production.
and
the right to the oil and gas
oil and gas development
leased
to
lands even though
conduct
exploratory
A decision
as an
it
drilling
the predominant
235
to
appropriate
does
By conferring rights to lessees,
gas to become
resources
not
or
grant
resource
it allows oil
use should development
be
proposed.
It follows,
therefore, that leases should not be
issued for areas where oil and gas development is not
an
appropriate
decision
from
land-use.
But,
is not a simple task.
the
oil
opportunity
foregone
and gas produced
costs
of
the
making
Ideally,
must be
other
once development occurs.
this
allocation
benefits
compared
resources
deemed
derived
with
and
land-uses
Determining what surface
resources are at stake in these decisions is relatively
since
they
are visible and easily mapped
and
matter.
easy
inventoried.
Determining what oil and gas resources are there,
another
the
if any, is
Making a leasing decision is like choosing
between the trip to Hawaii, the stereo and $10,000 in cash or
what
is behind Door #3 in the television show "Let's Make
A
The decisionmaker simply does not know what might
be
Deal."
gained
for what
is being given up.
With oil and gas and the
public lands, though, the stakes are considerably greater.
The Many Dimensions of Uncertainty
Oil and gas resources
beneath
the
earth's
are elusive.
They are well-hidden
surface and there is no way of
precisely
where
drilling.
Chapter 2 described the incremental steps taken in
exploring
for
additional
they
oil
are and in
and gas.
what
Only as
quantities
telling
each
step
but
by
divulges
information about an area's resources can an
oil
and gas company decide whether or not to continue exploratory
or development
the
USFS
does
activity.
But,
like the oil and gas company,
not know the implications of
236
its
decisions
until after they have been implemented.
Even
lands,
though
oil
in
located
beneath
public
federal government is not in the exploration and
the
development business.
faith
and gas are
the
Instead,
the government has put
private market to determine
when
exploration and development should occur.
and
its
where
In order to avoid
a haphazard rush to develop these resources, a leasing system
was
developed so that only an individual or single firm
has
access to a particular tract of public land.
Because
low
of the low lease application
annual
rental
fee
($3/acre),
fee
the
($75) and
leasing
process
encourages speculation by individuals hoping to make a
return on a small investment.
qualified applicant.
gas
firm.
Most
high
and
large
Leases are issued to the first
This applicant is not always an oil and
applicants
have
no
conducting exploratory drilling. [133]
oil
the
intention
of
ever
Their hope is that an
gas company will want to purchase
their lease at
price conditionned with royalty payments should oil
gas someday be discovered.
a
or
Predictably, when an area such as
the Western Overthrust Belt is discovered there is a mad rush
by individual speculators to acquire leases there. [134]
When
have
confronting a lease application,
little
development,
information
if
any,
will
about
what
ever occur
USFS field staff
exploration
on
the
or
leasehold.
Consulting with the lease applicant is seldom helpful as that
individual
information
is frequently just speculating that someday
may
indicate that exploration is
237
more
warranted
or
that
someone else (notably an oil and gas company) may
want
to acquire his or her lease(s) and then undertake exploration
and development.
Because the process is structured in a way
that encourages speculation,
in
exploratory
leasing
drilling.
decisions
rental
revenues
decision
to
exploration
field
are
Consequently,
inconsequential
for the public
90% of the
beyond
coffers.
USFS'
generating
[135]
Because
a
lease can have many different outcomes from
no
at all,
to unsuccessful
development,
various
only 1 in 10 leases ever result
the
Forest Service issues
stipulations
environmental
review
exploration,
attached
and
to
full
leases
with
defer
extensive
until later stages when more
specific
proposals are made.
Even
exploratory
information
about
the
particular leasehold,
Western
times
drilling
oil
and
though.
gas
not
reveal
resources
in the past.
deep
there.
[136]
enough
But,
beneath
The area now comprising
to discover the oil
Similarly,
drilling
often
involves
wellsites. [137]
and
gas
several
not
located
exploratory wells may sidestep and
For this reason,
two or three wells
and
exploratory
different
One hundred twenty-eight wells were drilled
Alaska's Prudhoe Bay before a strike was made in what
now North America's largest oil field. [138]
be made,
size
a
the
those exploratory wells were
just miss an oil or gas "trap."
the
complete
Overthrust Belt was explored unsuccessfully
drilled
in
does
is
Should a strike
several wells must then be drilled just to estimate
of
the discovery and thus whether
238
or
not
field
development
is warranted.
[139]
To make matters worse,
because oil and gas are so
well
hidden beneath the earth's surface, there is little agreement
on
the resource
industry
potential
of public
lands.
The oil and gas
estimates that federal public lands contain 70%
domestic oil and gas resources while accounting for only
of
its production.
hand,
estimate
83.5
on the
that 78.5 percent of the producible
They estimate
that only 15.8 percent
17%
other
oil
and
in non-federal
of the oil
and
percent of the gas will be found beneath federal lands.
Moreover,
environmentalists
potential
2.1
Environmentalists,
percent of the natural gas are contained
lands.
12.4
[140]
of
there
of the oil and 1.7 percent of
of
is
wilderness
resources
agreement
about what is
only
gas.
[141]
the
outcomes,
stake
in
these
The Forest Service does not know what oil and gas
are
to be gained or lost by
or not lease an area.
decision;
at
and
contain
these conflicting claims about likely
no
decisions.
lease
that
wilderness in the 17 western states
percent
Because
claim
any
decision
There
reached
their
decisions
is no obviously
can
be
to
correct
legitimately
questioned.
Decisionmaking
national
is
further
energy "needs."
clouded
by
debate
over
Is the oil and gas located beneath
national forest lands, regardless of how plentiful or scarce,
even
"needed?"
exploration
Company
What are the consequences of not
and development?
The vice-president
permitting
of Shell Oil
calls for increasing development of the public lands
239
production
the
in
[142]
U.S."
of oil and gas
declines
the continuing
to alleviate
"in order
managing
The
director
of
of
oil
Petroleum declares that "a declining supply
British
appears inevitable because oil is simply not being discovered
editorialized
that "the Carter Administration is culpable in
exploration
stimulate
federal
for oil and gas on high-potential
and strategic
of energy
minerals
insecurity,
the
view
lands."
Another industry representative comments that
[144]
time
to
failure
its
is
indictment
damning
most
but in our
major areas of energy policy,
several
magazine
newsweekly
industry's
The
[143]
enough."
fast
"at
it is
a
of
questionable judgment to postpone developing needed resources
while
awaiting the development of a forest management plan."
[145]
Environmentalists, on the other hand, argue that there
are many renewable energy sources to satisfy America's energy
and
needs
natural
it is senseless
that
In
potential
to the disagreement
addition
of
decisionmaking
oil
is
and
destroy
other
the last drop of oil.
to obtain
resources
to
[146]
and
about the need for
exploration
gas
scarce
on
public
lands,
about
complicated further by uncertainty
the environmental implications of drilling. Environmentalists
contend
further
that
even exploration
development
consequences.
activities
that
to
no
environmental
undesired
have
lead
As a result, they argue that no leases should
be issued in areas having high surface resource values. [147]
Industry
replies,
environmentally
sound
though,
that
exploration
240
it
and
is
capable
development.
of
It
believes
that
environmentalists are basing their
fears
on
past development but that times have changed:
The industry in recent years has made an enviable
record in environmental protection.
Gone is the
hangover from earlier less sensitive days, before
oilmen and others learned to be more conscious of the
consequences of their activities on the world around
them.
Industry
has
generally cleaned up
its
act...Oilmen have done a particularly good job in the
fragile frontiers.
Oil operations coexist in harmony
with wildlife on land and offshore. [148]
Environmentalists, though, paint a different picture based on
their
backcountry
encounters
with
current
exploration
activities:
The site looked more like a construction zone than a
wilderness area,
with drill rigs,
water tanks,
pipelines
and work crews dotting the landscape.
Instead of the scent of mountain wildflowers, all they
could smell was diesel fuel.
Quiet and solitude were
elusive; helicopters darted over the ridge with such
regularity they said they felt they were in a Vietnam
war movie.
The only wildlife they saw was a few
chipmunks, and they may have been packing their bags.
[149]
Disagreement about potential impacts is not limited to
traditional
adversaries
either.
these
As discussed in the
last
chapter, even government "experts" disagree about the impacts
of oil and gas exploration
Regardless
of
and development.
this pervasive uncertainty,
the
Forest
Service must make oil and gas leasing decisions almost daily.
But,
the mineral leasing laws give little guidance about how
to make decisions when the outcomes are unknown.
When these
laws were enacted uncertainty was deemed to be the problem of
private
industry;
account
for the risks associated with doing business
uncertain
world.
the market system would adjust prices
But
today
241
this
same
in
uncertainty
to
an
has
public
the
Forest
Service
demands
should
be
But,
which
determine
the stakes in these decisions
lands,
now.
greater
of
and competing demands for the varied resources of
increasing
the
Because
import for federal land managers.
considerable
is
are
not
able
and
satisfied
much
to
which
upheld because it does not know what is gained or
objectives
The conservation paradigm helps
lost by different decisions.
little in situations such as these.
Uncertainty about the consequences of decisionmaking has
But,
existed.
always
exploration
in
now
that
industry
national forest lands
has
penetrating areas valued for other
begun
interest
intensified
uses,
particularly
problematic
when
proposed
and
uncertainty
has become a critical factor in decisionmaking.
is
in
Uncertainty
or
potential
wilderness areas are involved.
Conclusions
The
public
land management paradigm was
pursue conservation objectives.
developed
And, it succeeded in serving
those ends for the first half of this century.
the
traditional
to
objectives
conservation
Now, though,
have
been
supplemented with preservation and non-commercial objectives.
Inherent
value
objectives;
differences
scientific
separate
expertise
and
these
different
technical
analysis
cannot
choose which objective should prevail in a particular
case.
But,
that
because the long-held paradigm remains
is precisely
intact,
how these decisions are made today.
242
The
been seen,
persistent
as
Professionals
schooled and experienced in
are
tradition
to
that
manner
accommodates
by
well-distributed
land
rulings,
court
conservation
and
mandates
is at an
by
these
in
of
because
a
the
become
Because power has
Congressional
management
choices
these choices
interests
all
values involved.
in
differences
of making
conflict.
Moreover,
ideals.
preservation
are not capable
professionals
the
longer trusted to make these
no
adhering
those
has
is
consequences,
favorable
in
impasse
many
cases.
been
has making
neither
an easy task;
through
never
to fit a square peg into a round hole has
Trying
analysis.
technical
Society
judgmental
decisions
penchant
has a
for
leaning on scientists and experts for making the tough social
choices
that inevitably must be made precisely because
are difficult,
controversial and many outcomes are possible.
When power becomes distributed,
issues, viable
concerns
Technical
of
similarly
lands
as it has over public
decisions are decisions that accommodate
all interests at stake to
analysis
Congressional
they
fails
intervention
failed.
satisfaction.
their
task.
at
this
and
judicial
the
Likewise,
rulings
have
Other means must be found.
The current debate over how public land decisions should
be
made is not new.
practitioners,
scientists
For the past two
professional
decades,
foresters
and
have studied and criticized the current
Reform has been proposed
and attempted.
243
academics,
political
process.
As discussed
in the
next chapter,
and
however,
not the paradigm.
past analysts have blamed the agency
As a result,
efforts
been misdirected and, thus, unsuccessful.
244
at reform have
CHAPTER 4 -- REFERENCES
[1]
Harold K.
University
Steen,
The U.S.
Forest Service:
Seattle,
of Washington
Press,
Michael Frome, Battle for
Publishers, New York, 1974.
[2]
the
A History,
1976;
and
Wilderness,
Praeger
Roderick Nash,
Wilderness and the American Mind,
(revised edition), Yale University Press, New Haven,
1967, page 27.
page 118.
[3]
Frome, op. cit.,
[4]
Ibid.,
155.
[5]
Ibid., Frome,
[6]
Ibid., page 121; and, Steen, op. cit., 154-156.
[7]
Ibid., Frome, page
[8]
Ibid., page 123.
[9]
Ibid., page 105.
[10]
Ibid., page 125.
[11]
Ibid., pages
[12]
Ibid., page 21.
[13]
Ibid., page 132.
[14]
pages
and
121.
20-21.
The Federal Lands Since
in Use and Management,
Resources
Johns Hopkins University Press,
Figure
8,
154-
page 121.
Marion Clawson,
Trends
and, Steen, op. cit., pages
118-120;
page
1956:
Recent
for the Future
Baltimore,
1967,
8.
10, page
10.
[15]
Ibid., Figure
[16]
Lettie M. Wenner, The Environmental Decade in Court,
Indiana University Press, Bloomington, 1982, page 1.
[17]
Steven Lewis Yaffee, Prohibitive Policy: Implementing
the Federal Endangered Species Act, MIT Press, 1982,
page 151.
[18]
Frome, op. cit., page 140.
[19]
Michael McCloskey,
"The
Ibid., pages 129-140;
also,
Its Background and Meaning,"
Wilderness
Act of 1964:
Oregon Law Review, volume 45, number 4, June 1966.
245
[20]
The Wilderness Act, 16 U.S.C. 1131-1136.
[21]
Ibid., section
[22]
43 U.S.C.
[23]
The Wilderness Act, Section 2(c).
[24]
Ibid., Section 4(b).
[25]
Ibid., Section
[26]
Richard
Bury and Gary Lapotka,
Wilderness," Environment,
volume
December 1979, pages 12-20.
2(a).
1701.
4(c).
"The Making
21,
number
of
10,
[27] The Wilderness Act, Section 4(d)3.
[28]
Ibid.
[29]
Accelerated
Onshore Oil and Gas Leasing May Not
as
as Anticipated,
Quickly
Report
to
the
Occur
Chairman,
Subcommittee on Oversight and Investigations, Committee
on Energy and Commerce,
House of
Representatives,
by
the US General Accounting Office, EMD-82-34, February
8, 1982, page 19;
also, the only reason some leases
are found in Wilderness areas is that leasing occurred
before
these areas were actually
designated
as
Wilderness
or because
of administrative
error as in the
White River National Forest, South Carolina's Wambaugh
National Forest and New Mexico's Capitan Wilderness
Area.
[30]
Interview with Dick Hamilton, Rocky Mountain Regional
Manager for Getty Oil Company,
Denver, Colorado,
November 1981; Interview with Al Reuter and Gary
Marple,
minerals specialists,
USFS
Bridger-Teton
National Forest, Jackson, Wyoming, November 1981; David
Sumner, "Oil and Gas Leasing in Wilderness -- What the
Conflict is About," Sierra, May/June 1982, pages 28-34;
Heather
NEPA
Law
Noble,
"Oil and Gas Leasing on Public
Lands:
Gets Lost in the Shuffle," Harvard Environmental
Review,
volume 6,
1982,
page
117;
and,
Environmental
Assessment
for Oil and Gas Exploration
in
the Palisades Further Planning Area, US Department of
Agriculture, Forest Service, Targhee and Bridger-Teton
National Forests.
[31]
Ibid.
[32]
Ibid.
[33]
Interview
with
Al Reuter and
246
Gary
Marple,
minerals
specialists, Bridger-Teton
Wyoming, November 1981.
[34]
Interview
National Forest,
Phil Hocker,
with
member
of the
Jackson,
of
Board
Directors of the Sierra Club and Wyoming Chapter
Conservation Chairman, Jackson, Wyoming, November 1981.
[35]
Ibid.
[36]
Ibid.
[37]
Morris
K. Udall,
"Extending
the Wilderness
System,"
The
Living Wilderness, volume 41, number 140, January/March
1978, pages
32-34.
[38]
Frome, op. cit.,
[39]
Dave
Sumner,
page 153.
Save Our
"Let's
Roadless
Areas,"
The
Living Wilderness, volume 40, number 136, January/March
Clifton
1977;
Heritage?",
130,
R.
July/September
1975;
II,"
Flaws of RARE
May/June 1979.
and,
Sierra,
We
"Shall
Merritt,
The Living Wilderness,
Lose
volume 39,
This
number
Huey D. Johnson,
volume
64,
"The
number
[40]
High Country News, February 4, 1983,
Event," volume 15, number 2, page 2.
[41]
7 Boston College Environmental Affairs Law Review 43
[42]
The
National
Wild and Scenic Rivers
3,
"A Not So RARE
Act,
16
U.S.C.
Sections 1271-1287.
1271 et seq
[43]
16 USC Section
[44]
Ibid.
[45]
16 U.S.C.
[46]
Ibid.
[47]
16 U.S.C.
[48]
Ibid.
[49]
Ibid.
[50]
16 U.S.C.
[51]
16 U.S.C. 1280b.
(1974)
1281.
1273.
1280a(iii).
[52] The Federal Endangered Species Act, 16 U.S.C. 1531-1543
(1976).
247
[53]
Steven
L. Yaffee, op. cit., pages 98-99.
[54]
Tennessee
(1978).
[55]
Conservation
Law Foundation
623 F. 2d at 712,
Andrus,
v.
Valley Authority
437 U.S. 153, 185
Hill,
England,
Inc.
of New
Cir.
1979),
715 (st
v.
as
discussed in James B. Martin, "The Interrelationships
of the Mineral Lands Leasing Act, The Wilderness Act,
and The Endangered Species Act: A Conflict in Search of
Resolution," 12 Environmental Law 363, (1982).
[56]
310-313;
pages
for a more general
also,
of mineral leasing on endangered
impact
James B. Martin,
[57]
Forests: Problems in
Volume 162, number 3,
"Our National
Rowe Findley,
Paradise," National Geographic,
Environmental
view of
the
species,
see
ibid.
for Oil and Gas Exploration
Assessment
in
the Palisades Further Planning Area, US Department of
Agriculture, Forest Service, Targhee and Bridger-Teton
National Forests.
[58]
and
Oil
Gas Journal,
"Search in California
Forests At Issue," November
[59]
The Clean Air Act, as amended,
[60]
The Clean Water
[61]
42 U.S.C.
Act of 1979, 33 U.S.C.
Oil and Gas Exploration
National
23, 1981, pages 52-53.
7409
(1979).
1324.
and Leasing within
the Washakie
Wilderness: Draft Environmental Impact Statement, US
Rocky
Forest Service,
Department of Agriculture,
Mountain Region, Shoshone National Forest, November
1981, page 10,
[62]
16 U.S.C. 528-531.
[63]
42 U.S.C. 4321-4347.
[64]
Public
94-588,
Law No.
80 Stat.
scattered sections of 16 U.S.C.).
[65]
16 U.S.C.
528.
[66]
16 U.S.C.
531.
[67]
Ibid.
[68]
43
[69]
Ibid.,
[70]
42 U.S.C.
U.S.C.
1701,
section
sections
5.
4332(2)(c).
248
8,
12.
2949,
(codified
in
[71]
NEPA Section 102(c) (v).
[72]
Lawrence S.
Bacow, "The Technical and Judgmental
Dimensions of Impact Assessment", EIA Review, volume 1,
number
2, June 1980.
[73]
16 U.S.C.
[74]
36 Code of Federal Regulations 219.1(b)(9).
[75]
36
1601-1610
Code
of
(1976).
Federal
Regulations
219.1(b)(10)
and
219.6(a).
[76]
Quoted in John F. Hall and Richard S. Wasserstrom, "The
National
Forest
Management Act of 1976:
Out of
the
Courts
523
and Back to the Forests," 8
Environmental
Law
(1978).
[77]
30 U.S.C.
1601-1605.
[78]
30 U.S.C.
1602(7).
(79]
30 U.S.C.
1602.
[80]
42 U.S.C.
8855.
[81]
Ibid.
[82]
High Country News, "Explosive Issue: Plan to 'Bomb' Bob
Marshall,"
pages 4-5.
December
28,
1979,
volume
11,
number
25,
[83]
Ibid., (quoting Dr. Arnold Bolle, former dean of the
University of Montana School of Forestry.)
[84]
High Country News, "Oil and Gas vs. Wild Lands: Harder
Choices Follow 'Easy'," September 18, 1981, volume 13,
number
[85]
High
18, page 14.
Country News,
"Rep.
Bob," May 1, 1981, volume
[86]
National Geographic,
Seeks Halt to Oil Search in
13, number
September 1982,
9, page 4.
op.
cit.,
page
311.
[87]
High Country News,
[88]
Ibid.
[89]
High Country News,
2, 1980, volume
[90]
December
28, 1979, op. cit.
"No Bombing in Montana's Bob,"
12, number
Ibid.
249
9, page 7.
May
[91]
Ibid.
[92]
Ibid.
[93]
Ibid.
[94]
High
April
Wilds,"
"Blasters Reprieved
News,
Country
13, number
3, 1981, volume
in
Marshall
7, page
2.
[95]
Ibid.
[96]
High Country News, "Move to Guard Bob Marshall Puts
Real Values Before Rhetoric," May 29, 1981, volume 13,
11, page 14.
number
[97] High
"Oil Seekers
News,
Country
Suit," June 12, 1981, volume
[98]
High Country News,
[99]
See
L.
Steven
Bob
File
13, number
Marshall
12, page 2.
May 29, 1981, op. cit.
op.
Yaffee,
on
cit.,
the
symbolic
dimensions of Congressional debate leading to enactment
of the Federal Endangered Species Act.
[100]
of American
Reformation
"The
Stewart,
B.
Richard
1667,
Law Review
88 Harvard
Law,"
Administrative
also, see Deborah A.
(1975), page 1667 note and 1695;
Stone, associate professor of political science at MIT,
The Disabled State, manuscript, December 1982, in which
passed
6 discusses the reasons Congress
Chapter
that
profession
medical
a
to
determination
disability
adamantly argued it had no expertise to make these very
judgmental decisions.
[101]
See:
Steven
op. cit.; Eugene Bardach,
Yaffee,
The
Implementation Game: What Happens After a Bill Becomes
a Law, MIT Press, Cambridge, 1977; Jeffrey L. Pressman
and Aaron B. Wildavsky, Implementation, University of
California Press, Berkeley, 1973; Paul Sabatier and
Adequate
More
a
"Toward
Mazmanian,
Daniel
-- With
Process
Implementation
the
of
Conceptualization
Manuscript,
Draft
Policy,"
Regulatory
for
Implications
1977; and, George
November
Public
Policy,
Washington
[102]
L.
C. Edwards
Congressional
III, Implementing
Quarterly
Press,
D.C., 1980.
Eugene Bardach,
pages 268-283;
ibid.,
and, Steven
L.
Forester,
to
Yaffee, ibid., pages 128-137.
[103]
Steven L. Yaffee,
[104]
Memo
Chief,
ibid., page 134.
from Craig Rupp,
Region
2 Regional
Forest Service, re: Mineral Leasing in Roadless
250
Areas,
quoted
Oil and Gas Lease C-17572
(April 15, 1977),
in Robert A. Nelson,
"Oil and Gas Leasing
on
Forest
Service Lands:
A Question of NEPA Compliance,"
The Public Land Law Review, volume
3, Spring
1982, page
19.
[105]
Clarence W. Brizee, "Judicial Review of Forest Service
Land Management Decisions," Journal of Forestry, July
1975, page 424.
[106]
Quoted in Alan A. Altshuler and Robert W. Curry, "The
Changing Environment of Urban Development Policy -Shared Power or Shared Impotence?", Urban Law Annual,
1975, page 31.
[107]
Donald
L.
Brookings,
Horowitz,
Washington
The
Courts and
Social
Policy,
D.C., 1977, page 3.
[108]
Ibid., page 22.
[109]
Ibid., page 23.
[110]
Ibid., page 5.
[111]
Quoted in Frome, op. cit., page 144.
[112] Casper
Star-Tribune,
"Washaki
Drilling May
Set
Pattern," Sunday November 15, 1981, page A9; also see,
Herbert E.
Wright,
Jr.,
"The Boundary
Waters:
Wilderness At Stake," The Living Wilderness, volume 38,
number 125, Spring 1974, pages 21-31.
[113]
Mountain
States
Legal Foundation v. Andrus,
499 F.
Supp.
at 393; see also, Oil and Gas Journal, "Delay of
Mineral Leases,
58-60.
Permits Hit," November 24, 1980, pages
[114]
499 F. Supp at 392.
[115]
Parker v. United
[116]
325 F. Supp. 99 (D. Alaska
[117]
579
F.
2d 1162
States,
309 F. Supp at 600.
(9th Cir.
1971)
1978),
quoted
in James
B.
Martin, op. cit.
[118] Actions Needed to Increase Federal Onshore Oil and Gas
Exploration and Development, Report to the Congress by
the Comptroller General of the United States, EMD-8140, February
11, 1981, page 23.
[119]
Ibid., pages
187, 189.
[120]
Forest Service Manual 2822.14b,
251
Interim Directive
No.
6, December
[121]
31, 1980, page 4.
US
Department
of
Agriculture,
Forest
Service,
"Responsive Statement -- Palisades Further Planning
Area (PFPA-EA)," Jeff M. Sirmon, Regional Forester,
Ogden, Utah,
September
[122]
Environmental
1092.
Defense
[123]
Robert A. Nelson, op. cit., page 15.
[124]
High
Country News,
Go Ahead,"
page
[125]
volume
3, 1980, page 2.
Fund v.
Andrus,
596 F.
2d
at
"Oil and Gas Group Gets Wilderness
12,
number
22,
November
14,
1980,
2.
Oil and Gas Journal,
November
24, 1980, op. cit., page
58.
[126]
Rocky Mountain Oil and Gas Association v.
Andrus,
500
F. Supp at 1345.
[127]
Oil and Gas Journal,
60.
November
[128]
Jackson
"Ruling May Affect Little Granite
Hole Guide,
Lease," April
[129]
[130]
15, 1982, volume
24, 1980, op. cit., page
30, number
40, page
1.
Ibid.
580 F.
2d 465
(D.C.
Cir) at 487;
quoted
in James
B.
Martin, op. cit.
[131]
The IBLA ruled in Stanford
(1973).), that:
R. Mahoney
(12 I.B.L.A.
382
[We] can perceive no reasoning why the permit may
not be granted subject to the express stipulation
and understanding that the issuance of any lease
pursuant
thereto
will be conditioned
upon
the
prior
rendition of an environmental
impact
statement, the findings of which shall determine
whether and under what terms the lease may issue.
In Quantex Corp
(78 Interior
Dec. 317 (1971)), the IBLA
ruled similarly:
...the
importance
of oil
and
gas
development
would have to be weighed against the importance
of the environmental protective factors in order
to determine whether a lease should be issued at
all. While adherence to these stipulations...may
impede
the
lessee's
proposed
exploratory
operation,
the
overriding
252
importance
to
the
public interest of the other land values, e.g.,
recreation,
watershed
protection,
aesthetic
beauty, outweigh the possible inconvenience to
the lessee.
[132]
U.S.
Department
of
the
Interior,
Office
of
the
Solicitor, Denver Region, Memorandum, October 10, 1980,
to John Matis, Cache Creek EIS Task Force Leader, US
Geological Survey, from Lowell Madsen, Acting Regional
Solicitor, Rocky Mountain Region, page 2.
[133]
U.S.
Department
Management,
"The
Leasing
System:
'Government
[134]
[135]
of
the
Federal
Interior,
Bureau
Simultaneous
Oil
Important
of
Land
and Gas
New Information About
Oil and Gas Lottery',"
the
1981.
Ibid.
Heather
Noble,
"Oil and Gas Leasing on Public
NEPA Gets Lost in the Shuffle," Harvard
Law Review, volume 16, 1982, page 149.
Lands:
Environmental
[136]
Interview with Dick Hamilton, Rocky Mountain District
Manager, Getty Oil Company, Denver, November 1981.
[137]
Ibid.
[138]
Ibid.
[139]
Ibid.
[140]
Oil and Gas Journal, "Outlook Cloudy for More
Land Energy Work," November 10, 1980, page 140.
[141]
Public
Kevin C. Gottlieb, "Rigging the Wilderness," The Living
Wilderness,
Part
I/Spring
1982,
Part II/Summer
1982;
also, Joseph L. Fisher, "Economic Aspects of Wilderness
Conservation," Presentation to the National Symposium:
"Public Lands and the Reagan Administration," Denver,
Colorado, November 20, 1981.
[142]
Oil and Gas Journal,
[143]
Oil and Gas Journal,
November
10, 1980, op. cit.
"More Access
to U.S. Federal
Land
Urged," September 29, 1980, pages 58-60.
[144]
Oil
and Gas Journal,
"Federal
Lands:
Carter's
Calamitous Energy Failure," Editorial, November 3, 1980.
[145]
Oil
and Gas Journal,
Rap RARE II Bill,"
[146]
"Oil Praises,
Environmentalists
May 4, 1981, page 386.
Phone interview with
Region Representative
Bruce Hamilton, Great Plains
for the Sierra Club, October
253
1981.
[147]
page 24, quoting
Winter 1981,
The Living Wilderness,
"The
Society:
of The Wilderness
Bill
Cunningham
as a
is whether this area is to be managed
question
as an
it is to be managed
If
resource.
surface
enduring resource then an inventory, as innocuous as it
sounds, is unnecessary. What's there is irrelevant."
[148]
Oil and Gas Journal, Editorial, "Environmental SelfPolicing Serves Industry's Best Interests," December
21, 1981, page 19.
[149]
Hank
Fischer,
"The
Plight of the
Cabinet
Mountains
Grizzlies," Sierra, January/February 1982, page 111.
254
CHAPTER
5
WHY THE PROBLEM PERSISTS
The
US
encountered
the
Forest Service
and
the mineral
Professionally
allocation
expertise
past.
from
when the agency was established at the
century
1920.
task differs markedly
leasing
trained foresters now
responsibilities
and
laws were
that
defy
turn
enacted
have
foresters
are
charged
their
with
of
in
resource
technical
that are more overt than at any time
These
that
in
meeting
the
many
contradictory objectives. Their decisions must be made in the
face
of
uncertainty
required
single
about potential
outcomes.
They
to make decisions in "the public interest"
"public
process
is
decisions,
interest" exists.
designed
the
to
make
decisions
to
While the
yet
are
no
decisionmaking
scientifically
defensible
be
inherently
made
are
judgmental; objectively correct answers simply do not exist.
The
Forest
allocation
land
task
management
decisionmaking
expertise.
that
Service now confronts a political
in addition to the
task to which
process
arise.
technical analysis.
meant
that
to
mismatch
remains
one
accustomed.
based
scientific
But,
in
exist
cloaks political
disputes
problems
in
The past three chapters have described a
is obviously
address.
It
the
technical
It provides no means for resolving the
inevitably
process
it is
traditional
resource
mismatched
In fact,
and persist?
remedied?
255
to the problem
too obvious.
Moreover,
how
Why
it
does
might
it
is
the
be
The
many
answer
past
to the first question is
analysts have misread the nature of
posed by public land management.
the
scientific
Service
conservation
ideal.
conservation
values
notion
that
in
that
problem
But,
by
attacking
the agency
consider
other,
these critics
the
adjustment;
it
have
is
the
long-held
and
by
non-commercial
recommended
aimed at the wrong target.
needs
Forest
attacked
of good public land management
changes
paradigm
the
[1] Rather than addressing
these analysts have
decisionmaking,
procedural
First,
management paradigm within which the
makes decisions,
demanding
complex.
It
how
is
these
the
many
conflicting values are considered that is critical to reform.
As
seen,
interest
"airing"
is not the
same
as
interest
"accommodation."
But,
paradigm
experts acquire information and then
wherein
within
the
scientific
management
make
decisions, interest airing is all that occurs.
Second, as discussed in Chapter 4, Congress responded to
the
World
expanding demands over public land
War
agencies
II
resources
by demanding precisely what
are
now
decisionmaking.
doing:
But,
considering
best
values
Congress
in
implied
times explicitly stated) that these decisions
left to scientific expertise.
decisions
other
management
by shifting these tough social choice
questions to the land management agencies,
(and at
land
following
It implied
that
were
these
had right answers that could be determined through
the rational,
In so doing,
dispassionate analysis of scientific
Congress reinforced this paradigm.
256
experts.
Hence,
the
Forest
Service
has not been given a message to change
that body with the direct
Finally,
the
manner
Service
there
this
authority
to do so:
frame
traditional
author argues
their
is
solution
paradigm.
Congressional
critically,
needed.
Partly
legitimization
the
context
this response is due
mentioned
above.
both the prescriptive
organizational
factors
that
change
determine
how the mismatch might be remedied.
the
of
established
both is in continued
land
management
adherence
paradigm,
of
the
to
the
more
forestry
This chapter
sources of failure
limit
they
But,
of the public
in
Forest
exists,
that is imbedded in this paradigm.
discusses
root
While
problem
in
it is due to the culture
profession
Congress.
are organizational limits to change
officials acknowledge that a
logically
from
in
and
the
order
to
As is
seen,
the
long-
to
one
relying
on
scientific expertise to resolve political questions.
Past Perceptions
of the Problem and Prescriptions
for Reform
This study is hardly the first to critically analyze the
Forest
decades
Service and to recommend reform.
and
management.
failure
two
the problem has been studied extensively by students
of administrative law and behavior,
groups
Over the past
to
individuals
They
have
recognize
with
a
foresters, academics and
stake
criticized
the
the limits of its
in
Forest
expertise
change its behavior and procedures accordingly.
257
public
land
Service's
and
to
While almost
all
have
come
to
study land
management
because
of
the
dissatisfaction of different user groups, none have discussed
how
the
underlying conflict between these groups
resolved.
they
might
be
While proposed reforms have become more exacting,
still
are
not
well-suited
to the
problem
at
hand.
Although the problem is often recognized as political, reform
proposals
are
behavior
almost
always directed
at
changing
within the context of the traditional
agency
professional
expertise land management paradigm.
As
the
demands
placed on national
following World War II,
list
of objectives
National
now
forests
broadened
Congress responded by expanding
to be met in national
forest
management.
policy no longer centers on conservation ideals but
embodies preservation and non-commercial ends
Given
the
the
changed
attention
of
policy,
past
the
analysts
"problem"
as
warranting
became
the
well.
the
inadequate
representation of these newly-legitimized values in
national
forest management.
Forest
in
a
Service officials responded to these new demands
professional
manner.
When
making
decisions,
"consider" the many resource values at stake in a
they
particular
proposal and then make decisions reflecting what they believe
to
be
"the public
determination
forestry
reflects
practices
profession.
interest."
and
both
As might
be
expected,
their training
the norms of
the
in
this
commercial
public
forestry
Forest Service staff seem to have confidence in
their ability to master this increasingly complex
258
management
task and still make decisions
has
confidence
several
Forest
Service's
public
interest."
to
approach
long tradition
is
It
interest."
It is partly born
roots.
due
in
to
which
their
This
of
of decisionmaking
also
decisionmaking
the
in
"the
systematic
issues
all
are
uncovered and considered before a decision
theoretically
partly it derives from their belief that,
made.
And,
though
current
is
even
in
problems are much more complex than
the
professional land managers are better able than other,
past,
more political bodies to make
potentially
these
decisions;
at
land managers understand what resources are
professional
stake
in "the public
efficiency.
and have an eye for long-term
But,
the
apparent confidence of the Forest Service on this account has
not
Some have argued that
been universally shared.
unethical
for the agency
to take "the public
it
interest"
is
into
its own hands.
A Question of Professional Ethics
In
Professor
the
University
mid-1960's,
R.W.
Behan
of
Montana
was one of the first members
Forestry
of
the
profession to express uneasiness about the changing nature of
the
forest management
foresters
to
task and the inability
respond
to
it.
In
of professional
an
editorial
in
The Journal of Forestry he criticized the ethic adhered to by
the forestry profession,
forestry
class
one articulated to Behan's freshman
by "a forester of considerable
status":
259
professional
We
must
have enough guts to stand up
tell
the
public how their [sic] land should be managed.
professional foresters, we know what's best for
As
the
land.
Behan
[2]
referred
forester."
reform.
to this ethic as "the myth of the
In this editorial,
He
pervade
and
omnipotent
he hoped to plant the seeds for
emphasized the extent to which value
forest decisionmaking and the need for
judgments
professional
foresters to acknowledge different values and consider
He
recognized
the
limits of professional
land
them.
management
training to make the inevitable value choices:
"Goodness" and "badness" in our society are collective
value
judgments,
and land expertise
is no
better
a
qualification than many others for making them. [3]
Additionally, he pleaded for a shift in forester loyalty from
the profession
For
and to society:
the
"various
ends
of society"
in
our
unique
society, are and will be set only by that society, and
not by a professional class of foresters.
It is when
we
as
professional foresters either can't
understand
or
this that we get the most rapidly
won't
into
the
hottest water. (And our forestry school training helps
us very little in sensibly avoiding getting there or
capably
getting
out.)
It
is when
we
attempt
to
determine ends that "pressure groups" become the most
hostile,
challenging
our leadership in resource
conservation,
He
concluded
indoctrinated
and they do so quickly
and properly.
that freshman forestry classes should
with the myth of the omnipotent
[4]
not
forester
be
but
rather should be told:
We
must have enough sense to stand up and
the public,
and to work with
it in setting
listen
to
forest land
objectives.
Then as professional foresters we can
supply the technological means to these sociological
ends, and not confuse the one with the other. [5]
In
the
end,
accomplishing
though,
the
Behan
shift
offered
in attitude
260
no
plan
or
determining
either
for
what
"society" wants.
He defined the problem as one of an ethical
bias on the part of the Forest Service and thus believed that
appealing
to
their sense of "right," combined with
appropriate forestry education,
a
more
would sufficiently amend the
system.
Behan's prescription for expanding the realm of forestry
education
When
was echoed by others during the 1960's and 1970's.
Daniel
process
Henning
studied
the
wilderness
designation
in 1972 he found, not surprisingly:
Wilderness preservation,
in many cases,
on
intangible
the
recognition
of
is dependent
and
qualitative
values as opposed to tangible or quantitative values
as dollars or numbers of people. Yet federal agencies
and many aspects of society are committed to values of
the first order (progress, materialism, tangibles) as
contrasted to values of the second order (quality,
intangibles, ecological considerations)... [6]
He, too, blamed professional forestry education for this bias:
Forestry
schools,
professional
and
agency
indoctrinations are oriented to producing a timbermanagement orientation in many governmental foresters.
Although the claim of professionalism and agency
objectivity is made by many resource managers and
administrators
in
the wilderness
classification
process, value considerations pertaining to economics
and mass recreation are obvious. [7]
Henning
called
education
forestry
which
where
foresters."
offset
now
opening the "closed ring"
only
involves
of
forestry
"technically
trained
professors who are training students for government
positions
courses
for
[8]
dealing
the requirements are made
He
believed that
with values,
a
He
also believed
261
professional
curriculum
ethics and
the apparent commerical orientation
foresters.
by
including
humanities
of
would
professional
that the use of committees
and
consultants
with
supplement
the
"determine
the
interest."
[9]
expertise
agency's
social
in various
expertise
ends
issue
and
areas
help
or value base
could
foresters
of
the
He denounced the current process
public
in
which
"the same administrators who initiate and argue in support of
a
particular
public
proposal"
are the judges that
input in reaching
a decision.
then
evaluate
[10]
With time, university level forestry programs have begun
to
offer or require courses on ethics and the value
inherent
in
addition,
the
personal
public
professional
USFS
has
forestry
career.
in decisionmaking.
has
sessions
begun
in
techniques
education
for
[12]
sponsoring
conflict
its
and
personnel.
training
in
the
dispute
[13]
conflict
In
inter-
involving
professionally-run
management
field
in
More recently,
in non-technical forest management
professional
[11]
held its own workshops
skills and different strategies for
Service
and
a
aspects
the
Forest
training
resolution
But,
while
considerations
management
and
interpersonal skills are a critical first step in meeting the
needs
alone.
of
today's land management task,
they
cannot
stand
At bottom, education and open-mindedness do not give
a professional forester the ability to actually represent the
values of others in decisionmaking.
A Question of Unbounded Administrative Discretion
While
many
have
criticized
professional
training as the source of inadequate interest
262
forestry
representation
in
Forest Service decisionmaking,
problem
agency
have
as one of unreined
most have pinpointed
administrative
discretion
bias in favor of some interests over
levels of reform prescribed.
procedures.
externally
There
and hence two
combined with public
broadened hiring practices and more
Others
an
Some perceived an internal bias
that could be offset through education,
involvement,
and
others.
been two levels of attack on this account
the
perceived
a
by agency "capture."
bias
that
formalized
was
imposed
All blamed Congress for the
predicament.
Agency Bias
As early
as 1962,
Charles
Reich asked many of the
same
questions that have been posed in this analysis:
Management must decide between the competing demands
on the forests.
When different uses clash, which
shall be favored?
How are local needs to be balanced
against broader interests? Who is to have the benefit
of the economic resources, and on what terms? How are
the conflicting recreational demands of fishermen,
skiers, hunters, motorboat enthusiasts, and automobile
sightseers to be satisfied?
Should the requirements
of the future outweigh
He
criticized
the
the demands
power bestowed
on
of today?
"small
[14]
professional
groups....[to] make bitterly controversial decisions, choices
between basic values,
He
blamed
administrative
with little or no outside check." [15]
Congress
for
delegating
such
extensive
discretion to the Forest Service with
little
attempt to bound the agency's authority:
The standards Congress has used to delegate
over the forests
are so general,
authority
so sweeping,
and so
vague as to represent a turnover of virtually all
responsibility.
"Multiple-use" does establish that
263
forests
the
cannot
be
used
for
exclusively
one
purpose, but beyond this it is little more than a
competing
the hope that all
expressing
phrase
interests can somehow be satisfied and leaving the
real decisions to others.
The "relative values" of
various resources are to be given "due consideration,"
but Congress has not indicated what those values are
or what action shall be deemed "due consideration."
Congress has directed "harmonious and coordinated
management
of the various resources," but it has left
to deal with
the problem
that
the Forest
Service
different uses of resources often clash rather than
harmonize.
Most significantly, Congress has told the
Forest Service to "best meet the needs of the American
up to the Service
but has left it entirely
people"
to
determine what those needs are. [16]
Reich
criticized Congress' "multiple-use" mandate in that it
all land uses.
justified
Forest
Service
In so doing,
that
he charged
choice could be justified and few
any
could
be
questionned legally.
Reich
Service
Forest
then
turned
his
attention to
exercised its broad discretion.
Service
presumption
that it
how
He
could
the
Forest
lambasted
determine
the
what
constituted the "public interest" before making a decision:
...the Service recognizes, in the matter-of-fact pages
of its manual, that its ultimate job is nothing less
the definition of "the public good,"
than
[17]
reserved for philosopher-kings.
Finally,
he
decisionmaking
stressed
that
inevitably
many land use values
the Forest
led to bias in
Service
a task once
manner
representing
of
the
at stake:
It is too much to expect that foresters who
and argue in support of a particular proposal
initiate
can then
counteradequately evaluate public criticism or
proposals that often represent thinking they have
earlier rejected. [18]
Reich recommended three reforms.
First,
he called for
public hearings on controversial proposals to ensure that the
264
Forest Service was made aware of all concerns before making a
decision.
resource
Second,
values
he
be
proposed
that
the
institutionalized
many
within
Service by hiring staff other than foresters.
these
different
the
Forest
In so
doing,
other values would be automatically incorporated
day-to-day agency decisionmaking.
formal
justifications
concerned
Finally,
into
Reich called for
when decisions are made so
that
groups know how and why the decision was
all
reached.
Reich believed that such justifications would make the Forest
Service
more accountable for their decisions
force them to represent
To
some extent,
institutionalized.
Policy
Act
described
earlier,
impact
justifications
profile
a
result of
as
well
public
decisions.
environmental
in decisionmaking.
National
been
as
new
hearings
agency
are
Environmental
statements
he suggested.
now
the oil and gas case,
groups
actively
by these
policies
held
on
most
assessments
contain
the
The agency also has
of its staff in a special
"satisfied"
[19]
Environmental
"public
and
formal
expanded
information
office" as well as within its field staff. [20]
in
ideally,
all of Reich's reforms have since been
procedures
controversial
the
As
all interests
and,
But, as seen
"all competing interests" have not
measures.
participate
While
most
in formal agency
interest
hearings
various proposals and comment on draft analyses,
they
on
still
do not feel that their concerns have been accommodated by the
Forest
Service decisionmaking
persists.
265
process.
Hence,
opposition
In
the
Virginia
year following Reich's article,
Economics
Professor George Hall
University
similarly
of
blamed
Congress for delegating broad discretionary authority to
the
Forest Service:
It appears that in voting for multiple
use Congress
believed
it was voting for virtue and against
sin
without having a definite idea about just what actions
constituted
He
criticized
virtue or sin.
[21]
what he viewed to be the fundamental flaw
of
the multiple-use doctrine, that being that:
it
fails
to provide
conflicts
among
a criterion
unspecified
standard
public." [22]
Hall
also
of
"the best
criticized the apparent Forest
exercising
"myth,"
for
its discretion
the
successfully
balance
[sic]...and
that
and
of
Service
bias
its
interests
the
in
He labelled
a
"professional
good judgment"
competing
the
general
interest
in decisionmaking.
Forest Service belief
competence...savvey
resolving
demands except for the
in
[23]
could
multiple-use
management:
The myth
is that
such
practices
are capable
of
resolving
all conflicting demands and allowing us
to
have our cake and eat it too.
Resolution, of course,
occurs
in the sense
that some
land
use
plan
is
selected. [24]
Hall's recommended solution to the multiple-use
differed
from
instituted
that
proposed
that
procedures
He believed
be
that, in so doing, conflicting
would be appropriately "resolved," thereby
that
national
He
for assessing the costs and benefits of different
land allocations.
demands
Reich's.
dilemma
"socially best administrative decisions
forests were made." [25]
266
But,
Hall also
ensuring
for
the
admitted
the
difficulty
in
devising
such a
scheme
intangible values were involved.
[26]
debated
quantifying
different
means
for
when
so
many
Economists have often
environmental
amenities
and
analysis.
But, no specific measures have ever been generally
accepted
Service
hence remedying that failure of
by these economists.
has
decisions
tried
to quantify
[27] And,
cost-benefit
when
the values
the
Forest
at stake
it has always been soundly criticized.
in
[28]
its
The
groups involved seldom trust the agency's evaluation of their
concerns and thus they oppose the outcomes of such analyses.
Reich's
and
Hall's
prescriptions
came
before
many
natural resource protection statutes had passed, particularly
the
National
Chapter 4,
to
Environmental
to oppose
inappropriate.
Hence,
resolved
as
1970's
Act.
As
discussed
when,
Hall
or decision
that
the
land use plans and decisions
deemed
today's conflicting demands are
implied,
is made.
persistent
"some land use
It was not until
and
powerful
not
plan
the
is
early
opposition
dissatisfied user groups became a cause for concern.
time
in
these statutes eventually gave considerable power
user groups
selected"
Policy
of
At that
analysts turned their attention to this consequence
of
the agency's broadened mission.
In
1972,
M.
Rupert Cutler analyzed,
in his
doctoral
dissertation, the growing dissatisfaction with and litigation
over Forest Service decisions. [29]
to two factors.
1960's
and
He attributed this trend
First, numerous court decisions in the late
early 1970's had liberalized judicial
267
rules
of
standing
in
previously
environmental
unavailable
because
doors
Forest
and
thereby
opportunitites for court
Forest Service decisions.
newly-opened
disputes
Second,
provided
review
of
he determined that these
to the judicial
system
were
well-used
Service decisionmaking procedures failed
to
provide adequate opportunities for public involvement.
Cutler
recommended
five specific reforms
this problem of constant litigation,
public
involvement
traditional
all designed to improve
First,
he
called for
multidisciplinary
profile within the agency.
accomplished
"personnel
training"
Second,
recruitment
he
of
and
and,
groups
improved
This could be
in-service
Fourth,
finally,
to
all
and
semi-independent
he called for
provide
"clientele
the
Forest
public
review
enough
time
to conduct "adversary analyses" of
for
agency
[30]
Many
of Cutler's recommendations have been
extent
by the Forest
Service.
efforts have been mentioned earlier.
profile has improved,
management
foresters
non-
he suggested "the
to generate several alternatives for
different
some
Third,
hearing officers
committees."
comment
actions.
an
and
encouraged early involvement of
independent
citizens'
Service
to
and "two-way communication with clientele groups."
groups" in agency decisionmaking.
use
overcome
and Forest Service receptivity
concerns.
by
to
adopted
"In-service"
to
training
The multi-disciplinary
mostly through expanded-hiring of land
professionals
other than
foresters.
In
1959,
comprised 90% of the Forest Service staff compared
268
to
50% in 1975.
thousands
reviews
"independent
meetings.
workshops
(RARE I and RARE II).
involving
[32]
At
times,
hearing officers" have been used to run
But,
public
these meetings were always to obtain public
not resolve disputes.
hearing
public
of individuals were held during the Forest Service
wilderness
input,
[31] Extensive
officers
often
As a result,
the
only complicated
the
independent
meetings
by
impeding the flow of information between Forest Service staff
and
those
attending
facilitated
the meetings.
Their
efforts
discussion between the different
seldom
groups.
[33]
"Semi-independent citizens committees" are seldom used by the
Forest
Service in decisionmaking.
Red-tape associated
with
the Federal Advisory Committee Act is often given as a reason
for not more formally involving such committees. [34]
This Forest Service response is partly due to Council on
Environmental
Quality
Environmental
Policy
statements
regulations
Act.
[35]
National
impact
must now contain analyses of several alternatives
large extent,
Forest
the
Environmental
and public comment on a draft version
a
under
Service
of the report.
today's public involvement efforts
are
a
result of Cutler's
own
But, to
by
the
efforts
as
Assistant Secretary for Conservation, Research, and Education
in
the
Department
of
Agriculture
during
the
Carter
Administration.
Cutler
was
implementing
research.
the
placed
in
the
enviable
recommendations made in
As Assistant Secretary,
269
his
position
of
dissertation
he immediately commented
that
the
Service
high
"one
imprint" he wanted to
make
on
the
was "development of policies that ensure
quality,
public involvement in policy
[36] His reasoning
Forest
extensive,
determination."
was that:
The amount of citizen litigation to block unacceptable
decisions relates directly to the opportunities, or
lack of opportunities,
for public participation.
The
U.S.
Department
of Agriculture's aim is to make such
litigation
shrouds
unnecessary,
of
to tear down
administrative
any
procedure
remaining
that
tend
to
shelter our decisionmaking,
and to get everyone
affected by the results of our decisions into the
decisionmaking process." [37]
Cutler
established
decisionmaking
in
involvement.
"five
order
Success,
stages"
to
in
to
ensure
be
followed
successful
this scheme,
was
extensive litigation plaguing the agency.
in
public
reducing
the
These five stages
were:
(1) defining
the issue
(2) collecting public input
(3) systematic analysis
(4) evaluating public comments
(5) decision implementation
[38]
It
was Cutler's belief,
more
open
and
representative
would
Service
be
in
Cutler's words,
findings,
accessible
decisionmaking
decisionmaking.
In
representativeness
Forest
given his research
theory,
decision
The final test of
implementation
this
stage;
this stage would reveal "whether the
has been adequately
be
this
would offset the widespread opposition to
decisions.
the
would
that
involved
in the decision."
270
[39]
theory
to
use
public
Cutler's
proposals and the Forest Service response
to be commended.
Dramatic change has occurred in the way the
agency involves the public in decisionmaking.
[40]
the "final test"
is in decision
implementation,
have
enough.
problem
not
been
are
The
But,
if
these reforms
persists.
Cutler's
prescriptions have failed to end the litigation at which they
were targeted because,
like those before him,
he prescribed
reform that reinforced the scientific management paradigm and
further
entrenched
analysis
technical
approach
continues
public
to
input,
try
public is
the
not
to redress the perceived
satisfied
wrongs
administrative process by appealing to the courts.
for
example,
The
RARE II wilderness reviews.
involved
review
in providing
EIS.
released,
Fifty-thousand people were
input to the scope of
Seventeen-thousand
more
the
were
wilderness
involved
But, in
has
been
Mining and timber industry groups,
environmental organizations,
all opposed
in
When the dEIS was
264,000 more comments were received. [41]
on all fronts.
the
of
process:
final test," the process and its conclusions
attacked
and
Consider,
participatory
the showpiece of this
workshops to structure the review process.
have
more
more sophisticated analysis techniques to systematically
evaluate
"the
to
While the Forest Service has employed
decisionmaking.
and
the
ORV and other backcountry users
its conclusions
as either too much
or
not
enough wilderness protection. [42] And, moreover, because of
a recent court
ruling that the EIS was
inadequate,
the Forest
Service has just announced plans to convene a new, "RARE III"
271
[43]
process.
While
the
which technical analysis is used
paradigm
in
outcomes
is the root of the problem.
Cutler
this paradigm.
reinforced
as
This study argues that the
here is much different.
defined
closely
the root of the problem
that studied by Cutler,
parallels
analysis
problem addressed in this
to
determine
reforms
But Cutler's
that "there is no
admitted
formula
in the decision process that tells USDA what
weight
public
participation
to
other
factors."
[44]
But,
should
relative
receive
he still called
for agency officials
evaluation
have faith
stage.
He believed that the public
[45]
in the administrator's
decision
as long as
comments
could be related to alternatives in a
visible
and
decisionmaking
indicates
is
way."
traceable
But,
[46]
effort has not addressed what
public
this
fishbowl
this
analysis
affected
interests do not feel represented unless their concerns
satisfaction.
been accommodated to their
they
no longer trust the systematic,
the public administrators
to accomplish
would
"consistent,
the many
the heart of the problem:
the
in
public input against other decision factors"
"weigh
to
And,
have
critically,
technical analysis
this end.
of
Some other
means for accommodating these many interests must be found if
viable
decisions
analyses
are
to
be
made.
Systematic,
technical
that do not conclusively pinpoint solutions
no longer be used to hide the judgments
be made.
272
that invariably
should
must
Agency Capture
There
the
was also a minority
during
this time that
problem somewhat differently than simply agency bias
decisionmaking.
They
"captured"
by
interests
could
system.
a
argued
that the Forest
single clientele
never
group,
be represented
Service
and
under
in
that
the
was
other
existing
Some claimed that the Forest Service was captured by
environmental
concerns
[47]
while
others
development interests were the culprit.
diverged
to
framed
believed
that
[48] These
analyses
from those discussed above and called for
Congress
avert single-interest domination by setting
the specific
priorities to be adhered to by administrative agencies.
A
Yale Law Review
multiple-use
decisions
expense
author
Use
benefit
of
scathing
management
system found that
environmental
of
the
land
interests
protection.
the multiple-use
Sustained-Yield
Congressional
overhaul
administrative
system.
environmental
and
other
Act
of
and
the
system,
In
order
national
proposed three new agencies,
called
entire
to
federal
management
at
[49]
the
criticized the "vacuous platitudes" of the
and
task:
analyzing
local and development
needed
attack
article
for
the
In
a
unnamed
Multiplea
complete
natural
resource
better
represent
interests,
the
author
each with a specific management
grazing, timber and recreation (including wilderness).
In this scheme, Congress would reshuffle all public lands and
then
allocate
them
to one of the
three
specific resource value would then prevail,
273
categories.
with other
The
uses
only allowed when compatible with the primary use.
would
make
help
of
these broad land allocation decisions
special
representatives,
[50]
be
and
advisory
commissions
consisting
conservationists,
specialists."
were
and
would
have
power
to be kept out of this
allocation
more likely to fight for expanded
would
be
author seems confident
better
building,
system
than
to
involved."
that this type
able than the existing
process,
domains
articulate and choose among the interests
The
change
Current agency
and
[51]
solely
to
because they "have a penchant for empire
fairly
agency
The Commission's proposals would
Congress
the
"industry
some
however,
are
with
of
allocations whenever national needs dictated.
officials
Congress
of
to
system
end
the
persistent opposition to land management decisions:
Resort to adjudication would be much less frequent...
The inefficiencies of using the cumbersome, case-bycase
adjudicative process for policymaking would
disappear once policy was established by Congress.
Adjudication would become a process of testing an
administrator's
actions
against
Congressional
directives,
manageable
as it ought to be.
Since there would be
directives from Congress greatly narrowing
the range of discretion,
appeals within
the agency and
to the courts could provide meaningful control. [52]
But,
it is not clear that the basis for this
criticisms
-- that
the Forest Service is captured by
and development interests -- is well-founded.
local
Paul
Culhane
the periodic attacks levelled
against
Forest Service by those adhering to the capture
theory.
recently
the
article's
questionned
In a comprehensive analysis of Forest Service
decisions,
he
found that, far from being captured, Forest Service decisions
274
appear,
overall,
to
be quite well-balanced among the
many
different interests involved. [53]
Regardless,
unnecessary,
Chapter
4,
public
land
such
is
an
extreme
response,
politically infeasible.
Congress
uses
mandated
As
its long list
for many reasons.
if
discussed
of
It is
not
in
legitimate
seldom
costly
politically to support legislation that promotes many
varied
uses for the national forests as opposed to special,
single-
purpose uses.
as
such
In fact,
legislation
legislator's
sometimes
is
reputation.
often
symbolic
[54]
and
Furthermore,
platitudes"
of many Congressional
constraints
-- both
specificity.
[55]
to
it is beneficial
political and technical
or
preservation
burdened
agenda.
"vacuous
-- on
for
its
real
greater
only further
It
crowd
mandates.
example,
endangered species protection or
would
many legislators
the
a
Congress would be overwhelmed if it tried
site-specific choices between,
development
enhances
acts are a result of
dictate precise measures for implementing
Making
to do so
Congress'
energy
wilderness
already-
would also be politically costly
to do so because
for
it is at this site-specific
implementation
of Congressional mandates that the
"winners"
and
become
possible,
"losers"
legislators
prefer
choices. [56]
would
ever
clearly
to avoid
defined.
resolving
When
such
controversial
Therefore, it is highly unlikely that Congress
voluntarily
take on the hot potato
suggested
in
the Yale Law Review article.
And, in fact, they have refused
to do so on several occasions
in the past.
275
[57]
The Problem of Administrative Discretion:
The
extent
common theme underlying these past critiques is the
to which Congress has delegated broad
discretion
problem
to the Forest Service.
persists
administrative
Critics argue
because the Forest Service
discretion in an inappropriate manner.
are
A Larger View
that
the
exercises
its
Hence, many measures
proposed to redirect or curb agency discretion as a
of allowing
full representation
Framed
discretion
as
a
problem
way
of all interests.
of
excessive
administrative
and thus agency bias in decisionmaking makes
the
Forest Service situation appear little different from that of
many administrative agencies.
and
administrative
Students of administrative law
behavior
Congressional
delegation
representative
agencies.
of
have
broad
long
criticized
authority
to
non-
Their proposed reforms echo those
recommended for the Forest Service.
But,
American
as
Richard
Administrative
appropriate.
[58]
agencies
be
interests,
Stewart argues
to
Law,"
He describes
a political one
not solely a technical
in "The Reformation
these
reforms
the role of
of
are
of
seldom
administrative
"balancing"
competing
one:
...the application of legislative directives requires
the agency to reweigh and reconcile the often nebulous
or
conflicting
policies
behind
the directives
in
the
context of a particular factual situation with a
particular constellation of affected interests.
The
required
balancing of policies is an inherently
discretionary, ultimately political procedure. [59]
But,
Stewart notes that most reforms that are proposed
276
rely
on
Congress
agency
setting
compliance.
complex
problems
formulas
applied
interests
strict standards
procedures
Such prescriptions assume that
can
be solved using
are
explicit
fairly
because
in
discretion
Stewart argues,
administrative tasks are not adaptable
most
today's
procedural
represented
are no longer able to exercise
favor of particular client groups.
for
In so doing, all
manner.
in a professional
theoretically
administrators
that
and
though,
to
these
formalized procedures:
...the relatively steady economic growth since World
War II...has allowed attention to be focused on the
perplexing distributional questions of how the fruits
of affluence are to be shared.
Such choices clearly
do not turn on technical issues that can safely be
left to the experts.
As
a
result,
administration
he
as
[60]
labels
the
traditional
"an essentially negative
all
political,
instrument
for
no technical formula can ensure
interests are represented in
trying
of
Because the decisions are
checking governmental power." [61]
inherently
model
to do precisely that,
decisionmaking.
the traditional
that
But,
model
by
relies
predominately on the judicial system to review administrative
decisions
appropriate
approach
"government
'which
individuals
Stewart argues that a
after they are made.
and
would be an
to do with
has
interests'
"affirmative"
the
system
representation
the
and
more
development
of
of
of
governmental policies on their behalf." [62]
Unfortunately
Stewart does not recommend any means
"affirmative" system,
developing
this
political
dimensions
of
today's
277
one recognizing
complex
social
for
the
choice
problems.
conclusion
His
impossible
is
that
but instead that energies should be
treating
various
instances
of
reform
is
devoted
"to
general
administrative
'failure'
through case-by-case examination." [63]
Public Land Management
One Case Examined:
the Forest Service
Unlike many administrative agencies,
not established
was
Instead,
clientele.
and to serve
the national
forests
"the greatest
good of
in "the public
the
achieving
this end was a relatively easy task.
interest"
was perceived to be the outcome
Hence,
scientific land management.
to
its
task
greatest
For much of Forest Service
in the long run."
number
a particular
it was charged from the outset with no
less a task than managing
interest,"
serve or regulate
to either
of
scientific
silvicultural,
fire,
practices,
the outcomes would,
"The public
professional,
if the agency responded
and managed
professionally
history,
flood
the
pest
and
using
lands
control
by definition, coincide with
the public interest.
But,
the
conception
interest"
has
changed.
merely
management.
technical,
counter
long.
to
able
to
Now
measurable
it
Forest
Service
it is expected to also consider many
non-
its technical
values
conservation
is
longer is the
public
land
judgmental
the
No
"the
in
exercise
Now
of what constitutes
expected
in
expertise
decisionmaking
values
that dominated
to weigh values
that
commercial return from the national
278
that
are
for
so
yield
no
forests.
No
longer do Forest Service scientific management practices
technical
analyses
automatically
satisfying "the public interest."
result
in
outcomes
The agency is charged with
making some difficult social choices that are political,
scientific,
in
nature.
the Forest Service
and
not
Like most administrative agencies,
is unequipped
to do so.
Public Administration and the Public Interest
The
Forest
represent
many
not alone
in
its
charge
to
advocating
just
as
many
different
public
That is the responsibility of most administrative
agencies.
The
responsibility
exists
is
the public interest in decisionmaking while having
publics
interests.
Service
that
federal
government
adopts
for tasks for which a broader public interest
otherwise would not
administrative
generally
agencies
arose
be
met.
In
out of the
fact,
same
many
scientific
management ideal that gave birth to the Forest Service.
[64]
How
"the
do
these other
public
interest?"
theory has phrased
babel
agencies
messages,
alternatives
and
then
As one student of public
"If the bureaucrat
it:
of many voices,
various
define
Unfortunately,
administration
to the
is exposed
speaking different tongues to
how
he ought
satisfy
which
among
single
answer
can he know
to choose?"
there
is
convey
competing
[65]
no
to
this
question.
Public administration theorists have long debated
but
resolved how administrators are to determine
then
have
never
serve "the public interest."
been
offered
regarding
279
Three different
the
role
of
and
theories
public
administrators:
Platonism
and
Administrative
Rationalism,
Administrative Realism.
Administrative
The
Administrative
Rationalists assume that efficient management coincides
In Herbert Simon's words:
the public interest.
The
criterion
factual
with
which
problems
is
the
administrator
one of
applies
to
the
efficiency.... Once
system of values which is to govern an administrative
choice has been specified, there is one and only one
"best" decision...
[66]
While this view prevailed during the progressive conservation
era when scientific management principles were devised, it is
seldom professed today.
Today the specified value system is
internally inconsistent.
For example, the problem frequently
faced
by
the
Forest
Service
is
to
how
choose
legislatively
commercial and non-commercial values that have
been
given
incompatible.
when,
within
equal
The
weight
even
though
Rationalists' theory
the
boundaries
of
between
they
is
are
often
unenlightening
"efficiency,"
several
legitimate outcomes are possible.
The
agreement
public
Administrative
on
how
to operationalize
administrators
defining
expertise
the
Platonists,
public
while
their
not
theories,
as taking a more active
interest
to achieve it.
and
then
For example,
in
total
view
approach
using
in
technical
Paul Appleby
notes
that:
Neither the simple reconciliation of private interests
nor their reconciliation modified by considerations of
public
interest
is in the end a technical
performance,
no matter how many technical factors may figure in it.
It is a political function, involving essentially the
weighing of forces and the subjective identification
of the narrow area within which these forces may be
280
balanced
and
the exercising of discretion concerning
the point within
public
maximized.
To
that area at which acceptability
interest
may
be
effectively
and
[67]
a large extent the Forest Service adheres to this
view
and
properly
of appropriate behavior.
The agency
latter
acknowledges
the
many publics affected by its decisions and thus the necessity
to
move
Forest
beyond just technical analysis
Service
responsibility
officials
in
perceive
it
decisionmaking.
to
be
to seek out and then weigh the public
when making decisions.
their
interest
Unfortunately, though, this approach
does not satisfy the many publics; the "babel of voices" only
grows
louder
theories
concludes,
Platonists
as
a
with their efforts.
thing
there
problem
with
of substance,
independent
in its terms."
Administrative Realists,
which
to
administrative
the
of
Administrative
David B.
the
in contrast,
interest"
decisionmaking
interest
decisional
argue
that
and thus
is in the
"babel of voices" is quieted,
single will.
these
[68]
is no such thing as "the public
key
the
is that "they have described the public
process and absolute
The
the
As one student of
the
process
by
not gelled into
a
Truman describes this view that "the
public interest" is a non-existant entity:
Many...assume
explicitly or implicitly that there
an interest of the nation as a whole,
universally
is
and
invariably held and standing apart from and superior
to those of the various groups included within it...
such
know
Were
even
an
assertion
flies in the face of all
of
the behavior of men in
it in fact true,
a
complex
not only the interest
that
we
society.
group but
the political party should properly be viewed as
an abnormality....Assertion
of an inclusive
"national"
or "public interest" is an effective device in many...
situations....In themselves, these claims are part of
281
the data of politics.
However, they do not describe
any actual or possible political situation within a
complex
modern nation.
In developing a
group
interpretation
of politics,
therefore,
we do not need
to account for a totally inclusive interest,
one does not exist. [69]
The
because
Realists' observation coincides with the current
Service
There
is
dilemma
over
oil and
gas
exploration
decisions.
are many publics affected by these decisions and
advocating decisions satisfying its particular
arguing
Forest
that they coincide with "the public
Service
particular
agree.
some
Forest
concerns,
interest."
The
decisionmakers have been unable to define
"public interest" to which the many publics
It appears,
direction
dilemma.
each
for
One
then,
that the Realists might
the Forest Service out of
its
a
will
provide
current
of the major criticisms levelled against
the
Realists, though, is that they have been unable to articulate
an
operational
practice.
definition for converting
[70]
their
theory
to
Perhaps the closest guide to implementation
is Appleby's statement that public administration:
is
the
eighth political
process.
It is
a
popular
process in which vast numbers of citizens participate,
in which assemblages of citizens comprise power units
contending
with
each other,
in which
various
governmental organizations are themselves functional
representatives of special interests of many citizens,
and in which these organizations themselves contend
mightily with each other in the course of working out
a consensus that translates many special interests
into some workable approximation of public interest.
This
process
is as essential
to
the
evolvement
of
governmental action as public debate, and closely akin
to
The
theory,
it.
[71]
Forest Service rejects the Administrative Realists'
though.
responsibility
to
Agency
officials argue that it
make these decisions,
282
is
their
not to turn
their
authority
over
to
representative,
the
public.
vocal,
[72]
but
Instead,
not-necessarily
the agency seems to
adhere to the Administrative Platonists point of view. Agency
seem
analyzing
the many different interests at stake,
can
be
confident
determined
that
that
determining
officials
will
by
coincide
with
But,
decisions
are
decisions
stamped with the Forest Service label:
Public
public
the "babel of voices" that arises when these
to be made
Interest."
Platonist-type
then
an outcome
the
interest.
The
and
ideology
is not quieted
by
administrative
"Made
The Forest Service adherence
does
not
direct
it
out
to
of
In
a
its
predicament.
The USFS Decisionmaking Process
officials are fully aware of the many
USFS
of
the public interest in their
more than anyone,
decisions
But,
in
decisions.
perceptions
They,
acknowledge the inherent difficulty of the
to be made in the face of these competing
many ways,
opinions.
perhaps
they feel vindicated by these
If left to its own devices,
"the public"
demands.
contrary
would be
constantly embattled, never able to decide who gets what.
having
decisions
in
agency of trained
an
public
land
managers,
can be made in a systematic and scientific
which all the different competing interests can be
and their interests balanced.
should
lead
Theoretically,
283
these
manner
heard
this approach
to decisions that best approximate the
interest."
By
"public
The
Forest Service Manual clearly states that it is the
Forest Service's administrative responsibility to "weigh
the
public's interest" in decisionmaking:
The Forest Service...encourages
identification
of
the
values
to be protected,
definition of resource
protection and mitigation needs -- based on relative
values of minerals and impacted resources -- and a
weighing of the public interest where there is a
conflict. If, after such weighing of public interest,
the potential adverse impact of mineral development on
surface values of an area is judged to be unjustified,
considering
the value of the minerals,
the Forest
Service
shall
appropriate)
But,
recommend
no leasing.
(or
require,
where
[73]
assessing the "relative values of minerals and impacted
resources" and "weighing the public interest" are much easier
said
than done,
each
especially when there are so many
advocating different outcomes,
public
interest."
How
do
Forest
publics,
each allegedly in "the
Service
field
staff
drilling
permit
implement this mandate?
The
Cache
Creek/Little Granite Creek
review process illustrates the thorough information gathering
and
public
participation efforts of the Forest
decisionmaking.
In
June 1980,
meeting was held in Jackson,
Service/US
developing
be addressed
Geological
Service
a three-day public
Wyoming, to help the US
Survey
task
force
in
in it.
Before
the public
scoping
Forest
charge
this EIS determine what issues and topics
in
of
should
scoping meeting,
the
interagency task force drafted a preliminary scoping document
to
provide
a
base for discussion
at
the
document was distributed to over 300 groups,
public agencies.
meeting.
This
individuals and
Responses as well as additional ideas could
284
at the formal scoping meeting,
be presented
or by calling
USGS
hikes
to
both
Public
wellsites
input
addition,
public
augmented
the
and fact-finding were hardly
three day scoping session,
force
prided
itself
in its
In
Chapter
VIII
with
Others,"
others."
"Consultation
the
discussed
supporting
the
proposed
to the
scoping
[74]
meeting.
this
In
the USGS collect.
in writing
tremendous
of
the
amount
the EIS conclusions.
original
task
"consultation
with
draft
the
entitled
EIS,
interagency
of
to
The USGS/FS
though.
extensive
limited
input
force
task
and
analysis
The discussion noted
USFS Environmental Assessment on the
that
proposal
was completed in December 1977 and that more than 200 written
were received on it.
comments
held
then
"unusual"
in
in
January
1978.
A formal public meeting
Next,
an
additional
environmental assessment prompted more input
writing and public hearings held in late July
August
1979.
The chapter
and
went on to list the task
was
USGS
both
early
force's
information gathering efforts:
Over 160 people attended the public (scoping) meeting,
and
some 35 individuals
participated
in the "show-me"
trips to the proposed wellsites.
Well over 1,000 private individuals were personally
contacted or consulted for information on technical
aspects by project scientists during the course of the
EIS investigation.
by
A series of [eighteen] reports was prepared
to
personnel and private consultants
Government
analyze and document various aspects of the Cache
285
Creek-Bear
Thrust
EIS.
The
reports
environmental, engineering and legal issues.
cover
Personal contacts with concerned individuals were made
by the task force leaders and other members of the
USGS and FS throughout the analysis period.
These
personal contacts, and other informal meetings, were
extremely important in developing an understanding of
the various publics' positions....All such information
has been used to assess the issues and concerns,
public needs, demands and alternative formulation.
[75]
It
is not clear
that this extensive
public
involvement
made the Forest Service's decision any easier.
manner
in
which
Creek/Little
complicated
the
public
Granite
Creek
the agency's task.
was
In fact, the
involved
process
may
in
the
Cache
actually
have
As they acquired
more
and
more information either about technical or ecological aspects
of
the
proposal or about public attitudes towards
agencies
in many ways isolated themselves from
interest
groups.
decisionmaker,"
interests
Perceiving
the
themselves
the
to
the
various
be
"the
two agencies set themselves apart
directly affected by the decision.
each interest group
it,
As a
from
result,
saw its task to be one of convincing
the
federal agencies of the "rightness" of their position and the
"wrongness"
of their adversaries' positions.
This approach
shadowed the legitimacy of all affected groups;
no
means
them.
the
for
resolving the conflict that
it
provided
existed
between
Eventually, this approach led these groups to distrust
decisionmaking process and hence reject those
decisions
made by it.
In the end, the Forest Service decided to permit
exploratory
drilling
at
both
286
wellsites.
As
has
been
discussed,
groups and led to several
national
state and
decision outraged several local,
this
appeals,
administrative
state hearings and lawsuits. [76]
Service
Forest
the
Creek/Little Granite Creek case
Cache
The
While
public
in
involvement
outcome of this case
is
process.
of public dissatisfaction with this
the Forest Service's approach to decisionmaking
might
the
final
the
give
the
Furthermore,
decisionmaking.
representative
on
emphasis
illustrates
that
confidence
land managers
public
assessment is in the "public's interest," it leaves the
publics
different
"preferred
agency
the
analyzing public input,
is
responsive
the
in
alternative,"
assessment,
In selecting
feeling unrepresented.
found,
its
environmental
Palisades
after
many
obtaining
and
then
that this alternative:
to the key issues raised by the
public
since it balances the intense opposing concerns of
industry.
energy
and the
groups
environmental
(emphasis added) [77]
But,
the
Sierra
Club disagreed with this
assessment
and
appealed the Forest Service's decision, eventually taking the
to court.
agency
The
many
responsive
publics
not perceive
do
USFS
to
to their concerns when the decisions reached
counter to their individual best interest.
decisionmaking
administrative
participation
by
these
many
concerns of each are aired,
their
the
process
publics
in
be
run
While the current
provides
order
that
for
the
it is not designed to accomodate
concerns in a way that satisfies them that
287
they
have
indeed
been accomodated as well as possible. Interest airing
is not interest
has
accomodation.
The
Forest Service predicament persists not because
not
been acknowledged or analyzed
proposed
reforms
context
of
past
have
scientifically
these
not been viable.
the long held public
prescriptions
are
trained
land
based
on
rather
because
Analyzed
management
the
in
assumption
that
land managers are capable of
making
extensive
extensive
public
despite
satisfied
groups
public
input
review
mandates
frequently
have been
involvement
to and
Congressional
represented,
fairly
As a result, most reform prescriptions as well
as Forest Service procedural changes,
Despite
their
to ensure that all interests at stake are
represented.
one
inadequate.
efforts,
of
that
despite
decisions,
all
and
values
user group or another
be
is
that their concerns have been accomodated.
distrust a process that yields decisions contrary
best interests and hence they oppose
those
Professor Stewart's terms,
the process is a
not
These
to
decisions
and appeal to other avenues for obtaining representation.
use
the
paradigm,
decisions and the only question is how to bound
discretion
their
but
it
To
"negative"
one with energies devoted to checking administrative behavior
in
the
ensuring
political
judicial
arena
representation
rather than
an
"affirmative"
in the administrative
arena.
problem lacking a political process in
one
It is a
which
the
competing demands can be made and resolved through bargaining
and compromise.
288
The Forest Service Capacity for Change
Conflict is the foundation of most social problems. [78]
Bargaining
and compromise
to resolve disputes
are
the
rather than the exception in solving such problems.
aspects
if
rule
If some
of land management have become more politicized
power
has become fairly well-balanced as suggested
and
here
and elsewhere, why do bargaining and compromise not naturally
occur
in
the
management
management
task
of
developed
public
lands?
political
As
aspects,
the
why
land
did
a
political system not evolve to accomodate it?
While
the
involvement
Forest Service has employed
methods
decisionmaking,
its
in order to represent
efforts
several
public
concerns
all
have clearly not been
in
enough.
Some might argue that the mismatch between policy problem and
policy
process
resisting
persists
because
the
Service
Forest
Even when an
the type of change that must occur.
agency acknowledges a problem and desires change,
always
a
extensive
barriers
simple task to effect
literature
to
effecting
change
change
on
that change.
when
it is
There
organizational behav ior
are analyzed
desired.
and
means
[79]
In
is
not
is
in
explored
an
which
for
The Limits of
Organizational Change, Herbert Kaufman identifies a long list
of factors that inhibit change within an
Change
is
not effected
organization's
Sometimes
when the benefits
stability
members
organization.
of maintaining
outweigh the benefits
actually
289
oppose
change
of
[80]
an
change.
because
of
individual advantage in maintaining the status quo,
in order
to protect the quality of the good or service produced by the
organization or because of the psychic costs associated
change regardless of its overall benefits.
aversion
change.
Often there is an
to the unpredictability inevitably brought about by
There are also "systemic" barriers posed by
resources with which to effect change,
change,
with
official
regulations,
constraints
rules,
and
limited
sunk costs precluding
on behavior imposed by
previous
decisions
as
laws,
well
as
unofficial constraints posed by traditional rules or norms.
The Forest Service exhibits many of Kaufman's "systemic"
barriers
to
change.
professional
norms
and
resistance is greatest.
Change in the
traditional
agency
must
procedures
overcome
where
the
Ashley Schiff's Fire and Water [81]
describes the twenty year battle within the agency to replace
the
traditional
fire
prevention
controlled-burning practices.
much
a
philosophy
agency.
little
Even
to
denounced
raw
change
forest
national forests.
1927,
that
practice
within
data proving its inadequacies
the historic zeal
with
could
which
the
do
foresters
fires as one of the worst threats
to
the
In-house research indicated, as early as
health
But, change in Forest Service policies did
come about until the late 1940's.
forestry
improved
Fire prevention had become as
as a professional
without considerable resistance.
the
with
controlled burning often improved timber
and productivity.
not
policies
profession
The informal network within
ridiculed
290
Even then it was not
the idea
and
hence
had
developed
a professional bias against it that was
difficult
to overcome.
The US Forest Service has a level of professionalism
political
independence
administrative
the
century
managers.
is
agencies.
it
from
the
decentralized
It was established at the turn of
trained
who has always worked
Service.
with
The
Forest
his way
Service
is
most management tasks occurring
far from the agency's
Washington
land
in The Forest Ranger,
is
controlled
structured
to be directly
executive orders.
tightly
up
the
highly
in
headquarters.
as Herbert Kaufman discovered
is
most
Its chief officer is not a political appointee but
of
field,
distinguishes
and is staffed by professionally
instead a forester
ranks
that
and
the
But,
[82]
it
by and responsive
to
Conformance with organizational procedures
enforced
by
a
highly-detailed
Forest Service
Manual, by ongoing intra-agency review procedures and through
long-established
university-level
experience.
The
professional
forestry
norms that are reinforced
education
organization
rewards conformance
norms by promotion and advancement.
for
innovation
or
change.
as well as in on the
to
in
job
its
There are few incentives
Hence,
as
Ashley
Schiff
discovered, the stability of the organization resists change.
While
inhibit
the agency's stability and traditional norms
change
hierarchical
the
Forest
Service's
seen,
there
tightly-reined
structure facilitates change when it is
appropriate by agency executive officials.
And,
deemed
as has been
has been some dramatic change in the agency
291
may
in
response
to
the
representation.
instituted
demands of different interest
Public participation programs were
for
rapidly
during the early 1970's where they had previously
been nonexistant.
official
groups
In 1970,
public participation became
Forest Service policy.
established
its
[83]
In 1972,
"Inform & Involve" program.
the
This
an
agency
program
illustrated a dramatically changed perspective on the part of
the
Forest
Service
about the value
of
public
input.
It
directed field staff to:
Broaden contacts
organizations to
with groups,
associations,
better inform and involve a
range of the public on current programs,
issues.
The
key...is
"awareness,"
projects
and
wide
and
and the key to awareness
is "listening."...It means seeking out and listening
to individuals and groups which may have traditionally
opposed certain aspects of Forest Service management.
Recognize
part
of
that public involvement is an
decision
making
since
it
can
essential
enable
the
decision maker to render a better decision.
Discard any notion that actions which will affect
environmental quality or the public interest can be
judged only by professionals.
Keep in mind that all interest groups are champions
of
some
aspects of good
resource
management.
Disregarding the concern of specific groups on one
issue because of extreme controversy may well weaken
their desire to get involved on other issues in which
they could make valuable contributions.
Recognize that public involvement requires that it
must be sought out before a decision has been reached.
[84]
The
Forest Service now uses what it terms
"Information
and
Education" efforts to help groups understand different public
lands
held
issues and proposals.
Public meetings and tours
much more frequently now than in the
292
past.
are
One-to-one
meetings
with
different groups are also used more often
obtain input as well as inform the public.
[85]
The
to
Forest
Service is hardly ignoring the problem; nor does it appear to
be
resisting change.
clearly
But,
that change that does occur
is
defined by professional norms and clearly within the
context of scientific decisionmaking consistent with the land
management paradigm.
Retargeting Reform:
The
past
The Public Land Management Paradigm
paradigm remains intact for
two
First,
reform proposals as well as Congressional mandates have
reinforced
it.
Society
continues to
turn
experts when tough problems must be solved;
the
reasons.
to
scientific
in this respect,
Forest Service cannot be blamed for its current dilemma.
Second, the paradigm prevails because it represents the norms
of
the
public forestry profession.
officials
acknowledge
decisions,
they
public
respond,
While
Forest
dissatisfaction
as
seen,
by
Service
with
their
providing
more
opportunities for public input to decisionmaking.
But,
the
decisionmaking itself still occurs through technical analyses
consistent with this paradigm.
no
This approach should come as
surprise considering who established the paradigm at
the
outset.
Past
efforts
to
forestry profession,
change
have,
culture of a profession is,
stabilizing.
By
design,
the
behavior
of
not surprisingly,
by nature,
the
public
failed.
The
self-reinforcing and
it resists external pressures for
293
change.
The profession
in society;
if
it would
defines
be counter
its role and establishes
to the concept
outsiders were able to fill this
role.
it
of professions
[86]
Political
scientist Frederick C. Mosher explains why this is true:
Professionalism
rests upon specialized knowledge,
science and rationality.
There are correct ways of
solving problems and doing things.
Politics is seen
as
constituting
negotiation,
elections,
votes,
compromises
-- all carried on by
subject-matter
amateurs.
Politics
is to truth,
belief.
Mosher
has
is to the professions
expediency to rightness,
as ambiguity
heresy to true
[87]
identified
several
common
characteristics
of
professions.
First, their purpose is to elevate or maintain
its
and
"stature
their objective
they
strength
is to expand
in the public
image."
the boundaries
of work in
have "exclusive prerogatives to operate."
establish
through
and
maintain
education
and
profession.
Finally,
concentrating
on
them
apart
from
professional
entrance
they
Second,
Third,
standards
and
requirements
identify
their
which
they
norms
to
the
niche
by
"work substance" and expertise
that
sets
other groups
[88]
The
or
individuals.
forestry profession is no different than other professions in
this
respect.
expanded
That they accept the responsibility for
the
public land management task is not surprising;
nor
is the way they have responded.
As seen, the Forest Service's public involvement efforts
have
to
not proven sufficient to end interest group
many Forest Service decisions.
obtain
opposition
The agency's efforts
input from "the public" do not always satisfy
294
to
groups
that
their
best
hearing.
While
require
that
informed,
staff
interests
official
indeed
Forest
received
Service
these
directives
a
fair
directives
field staff listen to the public
and
now
keep
do not explain what
the
it
field
should do with this input once they have acquired
Is simply "considering"
Club
have
it all that is required?
One Sierra
Director praised the Forest Service public
efforts
but lamented that,
involvement
once decisions are made,
like they never listened." [89] While a problem of
group
it.
"it is
interest
opposition was noted by Forest Service officials and a
solution
seen in public involvement,
occurred,
even
not
sufficient
been
the
involvement
that
though rapidly instituted and thorough,
to
avert
continuing
and
has
successful
opposition to decisions made.
In
the
oil
and
gas case analyzed
in
the
last
chapters,
it became clear that the institutional means
not
provided to accommodate the concerns
been
groups.
The
political
decisions
power
power
bestowed
that
can
on these
now only
many
be
used
after they are made but not to ensure
make
Forest
to
have
affected
groups
will be accommodated in decisionmaking itself.
to
of
two
is
question
that concerns
The authority
these decisions still rests appropriately with
Service.
decisions' once
But,
made
the
has
agency's
dwindled
as
a
the
power
to
implement
that
of
different
interest groups has grown.
Congress
passing
has
these
not
tough
necessarily shirked
resource
295
allocation
its
duties
decisions
by
to
Because of the level of information
administrative agencies.
needed and number and complexity
would
be
infeasible
Congress
its
administrative
the
Forest
to
Service
consider
In so doing,
ideal
It has
all
and weigh
instructed
values
Congress has reconfirmed
need
any
apparent
failed
Congressional
decisionmaking
Service
to
provide
It
decisions.
interests
has been
change
for
has
means
power
given
established
In so
procedures.
the political
by
overshadowed
of
validation
to
making
many
the
with which to advocate and protect their
an
Forest
it
doing,
for
the
In this
forests, by definition, serve "the public interest."
sense,
in
national
managed
professionally
that
the
best left to
to be made as technical,
professionals trained to make them.
progressive
these
Congress has implicitly
the
decisionmaking.
make
and intent of
In both the language
terms.
the decisions
labelled
to
task
natural resource statutes,
numerous
to
it
Congress has couched a political problem
agencies as it has,
in technical
expect
framing
by
But,
decisions.
to
to be made,
of decisions
has
these
different
concerns
and
has thereby indirectly curbed administrative discretion.
But
it has not provided
be
As
exercised.
negative
rather
manner
than
to
a forum within which this power
a result,
agency
to question
directly
the power must be used
represent
procedures
a
in
judicially
interests
their
can
in
Stewart's "affirmative" manner.
Both
have
cast
Congressional
professional
mandates and past reform
land managers
296
into
a
proposals
comprehensive
planning
role
land management
that
in addition to their
role.
traditional
But there is little
scientific
reason to
expect
foresters trained to address conservation ends in
management
will be able to suddenly
view.
is counter to their professional
It
land
adopt this comprehensive
background
and
norms.
In
fact,
biases,
we
should probably be more surprised that they have
considering
these inherent
professional
responded as dramatically as they have in providing means for
obtaining public input than critical that these efforts
have
not
like
been
enough.
comprehensive
develop
Public
city
land
planners
managers
who
obtain
are
information
alternatives that are then subjected to a
decisionmaking process by elected officials.
that
not
has
and
political
[90]
The
task
been given to Forest Service officials is to
both
develop these alternatives and then make the highly political
decisions.
hardly
That the outcome is opposition and litigation is
surprising.
Means
opposed to scientific,
for making these
political,
as
decisions have never been prescribed.
Hence, the response conforms to professional norms.
The
long
technical expert model of decisionmaking
been the hallmark
of the progressive
that
conservation
is not adequate when viewed in the context of today's
land
management task.
dimensions
rather
of
than
The political,
the decisions
resource
to be made must
hidden within technical analyses.
avoid the now pervasive and costly opposition,
group
must
be
be
satisfied
that
297
its
has
ideal
public
allocation
recognized
In order
to
each interest
concerns
have
been
represented.
The established process is clearly unsuccessful
at this task;
procedural
not able to represent
how systematic,
to
be.
These
involvement
change
is needed.
the many interests
Experts alone are
at stake,
no matter
how thorough nor how objective they may
disputes must be resolved through the
of
affected
interests.
The
try
direct
indirect
representation approach has proven itself incapable of making
viable
decisions;
the process is no longer trusted
by
the
many
affected groups and individuals.
must
not only acknowledge the limits of scientific expertise
and
A reformed
technical analysis in decisionmaking but
means
paradigm
include
other
for making the value judgments that invariably must be
made.
It must recognize the legitimacy and forcefulness
the
now
well-distributed
facilitating
power
and
acceptable decisions,
direct
of
it
towards
in contrast to
opposing
unacceptable decisions.
The
might
next
chapter discusses
be accomplished
It draws
how
institutional
reform
in oil and gas leasing and permitting.
from a growing
theory and practice
of
environmental
conflict management to illustrate how other, similar disputes
have been resolved.
public
land issue is ripe for reform.
proposes
Forest
It indicates that,
specific
Service
consensus
among
exploration
steps
in many ways,
Finally,
that might be taken
and Secretary of Agriculture
the
interests
involved
in
by
to
oil
Chapter
both
298
6
the
facilitate
and
disputes and thereby reduce the costly but
inevitable opposition to decisions reached.
this
gas
now-
CHAPTER 5 -- REFERENCES
[1]
Not
all
have misread
questionned
reform.
the
For
the
problem.
paradigm
example,
But,
offered
see
no
Richard
those
who
solutions
for
N.
L.
Andrews,
"Environment and Energy:
Implications of Overloaded
Agendas", Natural Resources Journal, volume 19, July
1979;
and,
Sally K. Fairfax, "Riding into a Different
Sunset:
The Sagebrush
Rebellion,"
The Journal
of
Forestry, August 1981, pages 516-520, 582.
[2]
R.W.
Behan,
"The Myth of the Omnipotent
Forester,"
Journal of Forestry, Volume 64, 1966, page 398.
[3]
Ibid., page 400.
[4]
Ibid., page 400.
[5]
Ibid., page 401.
[6]
Daniel
H.
Henning,
"The
Ecology
of
Political/Administrative
Process
For
Classification," Natural Resources Journal,
January 1971, pages 70-71.
[7]
the
Wilderness
Volume 11,
Ibid., page 72.
[8] Daniel H. Henning, "Natural Resources Administration
And the Public Interest," Public Administration Review,
Volume
[9]
30, March/April
1970, page 137.
Ibid., page 138.
[10]
Henning,
[11]
For
op. cit.,
example,
the
"The Ecology of the ...",
School of Natural
page 72.
Resources
at
the
University of Michigan now offers an "Environmental
Ethics and Professional Responsibilities" course that,
in addition to lecture and reading materials, brings
together officials from the Forest Service and other
federal and state resource agencies to discuss this
aspect of their management
task.
[12]
Public Involvement and the Forest Service,
Service Administrative Study of Public
Report, May 1973.
[13]
These workshops have been held for field and Washington
staff
of
the
US
Forest
Service,
U.S. Forest
Involvement
Bureau
of
Land
Management and Geological Survey over the past few
years by private consultants such as ROMCOE -- The
Rocky Mountain Center on the Environment, of Boulder,
Colorado, and Clark-McGlennon Associates and Barry
299
Lawson Associates, of Boston.
[14]
Charles A. Reich, "Bureaucracy and the Forests," Center
for the Study of Democratic
Institutions,
Santa
Barbara, California, 1962, page 1.
(15]
Ibid.,
page
2.
[16]
Ibid.,
page
3.
[17]
Ibid., page 13.
[18]
Ibid.,
[19]
Ibid., pages
[20]
M.
page
6.
Rupert
7-11.
Cutler,
"A Study of Litigation
Related
to
Management of Forest Service Administered Lands and its
Effect on Policy Decisions," Michigan State University,
PhD Thesis, 1972; Also, interviews with US Forest
Service staff in the Washington, D.C. Minerals and
Geology Division Office, July and September, 1981, and
in the Bridger-Teton National Forest Headquarters,
Jackson, Wyoming, November, 1981.
[21]
George R.
Hall,
"The Myth and Reality of Multiple
Use
Forestry," Natural Resources Journal, Volume 3, October
1963, page 282.
[22]
Ibid.
[23]
Ibid.
[24]
Ibid., page 284, 289.
[25]
Ibid., page 287.
[26]
Ibid., page 289-290.
[27]
For example,
see A. Myrick
Freeman
III, The Benefits
of
Environmental Improvement,
Johns Hopkins University
Press/ Resources for the Future, Baltimore, 1979.
[28]
Most notably was the Forest Service's extensive second
Roadless Area Review and Evaluation (RARE II) process.
The agency used computers
to tabulate
all public
input
and then numerically rate the different potential
wilderness areas using these ratings; RARE II: Final
Environmental Statement,
Roadless Area Review and
Evaluation, U.S. Department of Agriculture, Forest
Service, January 1979.
Similarly, the rating schemes
used in the Palisades
Cache
Creek/Little
Chapters
3
Environmental
Granite
Creek
Assessment
EIS
and 4 were also criticized
300
and
discussed
by
groups
the
in
who
thought
these
schemes
environmental considerations.
overshadowed
critical
[29]
Cutler, op. cit.
[30]
Ibid., pages
[31]
Glen O. Robinson, The Forest Service: A Study in Public
Land Management, Johns Hopkins University Press for
Resources for the Future, Baltimore, 1975, page 34.
[32]
RARE II: Final Environmental Statement, Roadless Area
Review and Evaluation, U.S. Department of Agriculture,
Forest Service, Washington, D.C., January 1979.
[33]
Public Involvement and the Forest Service,
pages 44-49.
[341
Ibid.,
498-509.
pages
S.
in Forest Management
Volume 72, July 1974,
Quality,
"National
Council
on
Environmental
Environmental Policy Act: Implementation of Procedural
Provisions;
Final
Regulations,"
Federal Register,
Wednesday,
[36]
cit.,
60-62; Also, J. Alan Wagar and William
Folkman, "Public Participation
Decisions," Journal of Forestry,
pages 405-407.
[35]
op.
November
29, 1978, Part IV, 55978-56007.
M. Rupert Cutler, "Public Involvement in USDA DecisionMaking," Journal of Soil and Water Conservation, 33(6),
1978, page 264.
[37]
Ibid.
[38]
Ibid., pages
[39]
Ibid., page 265.
[40]
For example, see Public Involvement Processes and
Methodologies:
An Analysis, Ernst Valfer, Stephen
Laner, Daina Dravnieks Moronne, U.S. Department of
Agriculture, Forest Service, Management Sciences Staff,
November
1977;
Public Participation in
Resource
Planning:
Selected
Literature
Abstracts,
Daina
Dravnieks
264-265.
and Donald C.
Pitcher,
U.S.
Department
of
Agriculture, Forest Service, Management Sciences Staff,
April 1982; Public Involvement and the Forest Service,
op. cit.; and, Paul Culhane, Public Lands Politics:
Interest Group Influence on the Forest Service and the
Bureau of Land Management, Johns Hopkins University
Press/Resources
for
the
Future,
Baltimore,
1982,
Chapter 8: "Public Participation."
[41]
M. Rupert Cutler, "Public Involvement in USDA Decision301
Making,"
[42]
The
op. cit., page 265.
Living Wilderness
January/March
1979,
Volume
42,
Number 144,
"RARE II's Results:
Far Too Little
Wilderness" and several following articles in this
issue.
[43]
High
Country
News,
February
4,
1983,
"A Not So RARE
Event," volume 15, number 2, page 2.
[44]
M.
Rupert Cutler,
"Public Involvement...," op.
cit.,
page 266.
[45]
Ibid., page 265.
[46]
Ibid.
[47]
For
example,
see
Jack
McNamara,
"Federal
Land
Management Policy and the Drive to Develop an Alternate
Energy Source, Geothermal Energy: Shall the Twain Ever
Meet?", Natural Resources Journal, Volume 19, April
1979.
[48]
For example,
see "Managing
Multiple Use System,"
Number 4, March 1973.
note
Federal
Lands: Replacing
the
Yale Law Review,
Volume 82,
Also see Chapter 1 References,
2.
[49]
Yale Law Review,
[50]
Ibid., page 801.
[51]
Ibid.
[52]
Ibid., page 803.
[53]
Paul J. Culhane, Public Lands Politics: Interest Group
Influence and the Forest Service and the Bureau of Land
Management, Johns Hopkins University Press/Resources
ibid.
for the Future, Baltimore,
[54]
1981.
Steven L. Yaffee, Prohibitive Policy: Implementing the
Federal Endangered Species Act, MIT Press, Cambridge,
1982.
[55] Richard B.
Stewart,
Administrative
Law,"
"The Reformation of American
88 Harvard Law Review 1667,
(1975), page 1677 note and 1695.
[56]
Ibid., page 1677.
[57]
Secretary
between
establish
of the Interior Harold Ickes tried
1935
a
and
the beginning
single
of World
"Department
302
of
War
in
II
vain
to
Conservation"
responsible for all domestic natural resources. The
issue was raised again in the Hoover Commission Report
in President
in 1950,
Nixon's
1971 reorganization
plan
plan.
and
President Carter's 1979 reorganization
(Culhane, op. cit., page 50); Also see generally, Sally
K.
Fairfax,
"Riding
into
a
Sunset:
Different
The
Sagebrush Rebellion," Journal of Forestry, August 1981,
pages 516-582.
[58]
of American
"The Reformation
Richard
B.
Stewart,
and
pages
1688-1711
Law," op. cit.,
Administrative
1805-1813.
[59]
Ibid., page 1684.
[60]
Ibid.
[61]
Ibid., page 1687.
[62]
Ibid.
[63]
Ibid., page 1805.
[64]
Frederick C. Mosher, Democracy and the Public Service,
Oxford University Press, New York, 1968, pages 70-79.
[65]
Glendon
A.
Schubert,
"'The Public
Jr.,
Interest'
in
Administrative Decision-Making: Theorem, Theosophy, or
Theory?", American Political Science Review, Volume 51,
June 1957, page 346.
[66]
Ibid., page 349.
[67]
Ibid., page 353.
[68]
Ibid., page 367.
[69]
Ibid., page 358.
[70]
Ibid., page 357-366.
[71]
Ibid., page 358.
[72]
Interview with USFS Chief R.
Max Peterson, October 13,
1982.
[73]
Forest
Service
Directive
[74]
Manual,
No. 6, December
Section
2822.14b,
Interim
31, 1980, page 8.
Draft Cache Creek-Bear Thrust Environmental Impact
Statement: Proposed Oil and Gas Drilling Near Jackson,
Teton County, Wyoming, U.S. Department of the Interior,
U.S.
Division,
Conservation
Survey,
Geological
Department of Agriculture, Forest Service, Bridger303
Teton National Forest, 1981, pages VIII-1 to VIII-6.
[75]
Ibid., page 1 and VIII-2.
[76]
See
[77]
Environmental Assessment for Oil and Gas Exploration in
the Palisades Further Planning Area, United States
Department of Agriculture, Forest Service, Targhee and
Bridger-Teton National Forests, page 46.
[78]
Lewis
3.
Chapter
A.
Continuities
Coser,
in the Study of
Social
Conflict, The Free Press, New York, 1967; Joseph S.
Himes, Conflict and Conflict Management, University of
Georgia Press, Athens, Georgia, 1980.
[79]
Barnett,
Innovation:
Hill,
McGraw
1953;
[80]
Cultural
Chin
Beene,
(second edition),
Planning of Change,
and Winston,
Basis of
The
Bennis,
Change,
(eds),
The
Rinehart
Holt,
1969.
Herbert Kaufman, The Limits of Organizational Change,
The University of Alabama Press, University, Alabama,
1975.
University
[81]
Ashley Schiff, Fire and Water, Harvard
Press, Cambridge, Massachusetts, 1962.
[82]
A Study in
The Forest Ranger:
Herbert Kaufman,
Johns Hopkins University
Behavior,
Administrative
Press/Resources for the Future, Baltimore, 1960.
[83]
Culhane,
[84]
Ibid., page 241.
[85]
op. cit., page 232.
See
Ibid.;
also
Public
Involvement
and
Forest
the
Service, U.S. Forest Service Administrative Study
Public Involvement Report, May 1973.
[86]
See Frederick
C.
Mosher,
op.
cit.,
Chapter
with
State," pages 99-133;
Professional
reference to the Forest Service see Herbert
4,
on
"The
specific
Kaufman,
The Forest Ranger, op. cit.
ibid., page 109.
[87]
Mosher,
[88]
Ibid., pages
[89]
Interview with Phil Hocker, member of the Sierra Club's
Board of Directors and Wyoming Chapter Conservation
environmental
Another
1981.
November
Chairman,
attorney conjectured that perhaps "they just put all
the
107-131.
information
gathered
304
into
a
box
somewhere."
Interview with Karin Sheldon, attorney for the
Club Legal Defense Fund, January 1983.
[90]
Sierra
See Alan A. Altshuler, The City Planning Process: A
Political Analysis, Cornell University Press, Ithaca,
1965, especially Chapter VII, "Political Restraints and
Strategies."
305
CHAPTER
6
EIGHT STEPS TOWARDS RESOLVING
OIL AND GAS LEASING AND PERMITTING DISPUTES
Confronting
Wilderness
Randall
150
lease applications
in Wyoming,
for
the
Shoshone National Forest
Hall expressed his dilemma,
Washakie
Supervisor
one facing most
forest
supervisors today:
I
don't see where there is any middle ground
between
the oil people and the environmentalists
when it comes
to questions of wilderness....whichever
way we go, I'm
afraid we'll end up in court. [1]
Hall
As
has responsibility for making these leasing
described in the Forest Service Manual,
the
competing interests of the
and the public
for
identifying
might
M.
in general.
decisions.
he must
balance
environmentalists,
In other words,
industry
he is responsible
that elusive middle ground.
But,
how
successfully do so has never been adequately
Rupert
Resources
Cutler,
when
Assistant
Secretary
and Environment in the Department of
bemoans
the
[2]
defined.
for
Natural
Agriculture,
acknowledged that no "formula" exists to guide land
to a "right" choice.
he
managers
Similarly, USFS Chief Max Peterson
fact that few of these decisions can be
proven
"measurably correct." [3]
To
try
to
avert the non-conclusive
analyses,
Forest
systematic
methods,
other
extensive
Service
officials
nature
apply
computer tabulations,
analytical
tools
to
of
their
even
more
cost/benefit and
the
decisionmaking
problem.
But, as seen, their efforts have been to no avail.
Technical
analysis,
no
matter how thorough
306
and
seemingly
objective,
have
not assure user groups that their
does
been accommodated as well as
concerns
Consequently,
possible.
opposition persists.
Consciously
or
not,
Congress
has
significantly
redistributed power over public land management. And, because
the institutional means have not been provided to direct this
it is
power towards developing acceptable outcomes,
used
to
oppose
paralysis
this
unacceptable
the decisionmaking process.
of
The
decisions.
instead
result
Efforts to
is
avert
outcome have centered on public participation and
more
visible decisionmaking in hopes of assuring public land users
that their concerns have been considered. But, as seen, these
efforts have not succeeded.
In
many
cases
there is no middle
between values is too extreme.
ground;
the
clash
In just as many other cases,
a middle ground may exist. But, the decisionmaking process is
not
structured
National
to determine what that point
Forest
Supervisor Randall Hall,
is.
like
Shoshone
all
Forest
Supervisors and Regional Foresters, is responsible for making
a
decision.
He
follows
Forest Service Manual.
which
decision
several
steps
outlined
in
the
But, these guidelines cannot tell him
to make.
different
all the
And,
he is under
pressure
groups to make very different
from
decisions.
Each time he tries to balance these competing interests, each
time
he
ground,
this
tries
to pinpoint and
then
by
providing
307
that
middle
The process encourages
his decisions are contested.
opposition
achieve
no
other
means
for
accommodation.
The reform recommended in this chapter institutionalizes
an
alternative forum in which affected groups can
decisions
made.
now
user
in
It
the making rather than oppose
adopted
universally and without choice by
groups.
The
process
proposed
that
rendered.
It
decisionmaking
must
be
particular
made
substitutes
for
that
management paradigm.
posture
public
one
land
in
which
a
a
decision
consensual
by
value
can
be
approach
the
long-held
to
land
It encourages those groups affected by
decision
the
before
dictated
to
work together
action for the Forest
directly,
is
once
foresters do not alone make the critical
judgments
proposed
decisions
provides an alternative to the defensive
professional
a
influence
process
focuses
Service.
in
developing
By
participating
efforts on real
a
issues
of
concern rather than, strategically, on issues that "win."
It
encourages cooperation, not adversarial behavior. It seeks to
accommodate
concerns
directly in decisionmaking
and
allow
those affected groups to ensure that their concerns have been
accommodated
as well as is possible.
It focuses the broadly
distributed power over public land management decisions in an
affirmative rather than negative manner.
of
this
[4]
process is to promote accepted and
decisionmaking.
308
The
objective
hence
decisive
Politicizing vs. Depoliticizing the Process
The
argument
made
here
is not
that
authority
over
national forest management in general, or oil and gas leasing
and permitting recommendations in particular, should be given
to some organization other than the Forest Service.
the
difficulty
one
body
of the task,
the Forest
Service
remains
who
would
the
Forest
the
The question is
not
make these decisions better but rather how
Service
opposition
reduce the now
to its decisions
the
about
with the most experience and expertise
national forests and forest management.
Despite
inevitable
in order to better
and
might
costly
fulfill
its
complex mandate.
From
that
a political science perspective,
the problem exists today because too
many would argue
much
for public participation has been provided.
opportunity
They argue for a
return to "responsible governance" and the cultivation rather
than
the
ridicule
and
demise
of
the
public
service
professions. [5] But, the process proposed here is not meant
to question
the public
forestry
profession
and to replace
with a purely political decisionmaking body.
designed
to
Congress
has
Instead, it is
assign the profession those tasks for which
has expertise and should prevail.
it
And, in those cases where
mandated tasks that require
this scientific expertise,
it
judgments
beyond
the agency receives assistance by
those directly affected by the decision.
Public
frequently
administrators
bemused
in
foreign
countries
by the widespread distrust
309
of
are
American
administrative
agencies
and
the political realm
their decisions must be made. [6]
administration
their
jobs and,
These
foreign
appalled
further
at
is
which
In their countries, public
based upon trust in professionals
in so doing,
to serve
public administrators
the
in
proposal made
national
would
here,
to
interests.
undoubtedly
one
do
that
be
seemingly
politicizes an already highly-politicized situation.
On
the other hand,
it is quite clear that the American
public is not going to suddenly shift a growing distrust into
the
trust
advocate.
we
respect
Similarly,
that
avenues
decisions
administrators
it is not clear that, in our democracy,
for
review and
that preserves
the people."
least,
revision
our "government
Such "depoliticization"
highly political undertaking.
at
non-American
would ever want to "depoliticize" the process by removing
those
by
and
that
it
would
of
administrative
for the people
is,
in
itself,
and
a
Nor does it seem, in this case
accomplish
the
public
policy
objectives that Congress has so enthusiastically embraced.
Whether
or
actually
Chapter
3,
this forum is further politicizing the
depoliticizing
it is not obvious.
the process is already both extremely
and extremely ineffective.
cooperative
divisive
their
As
setting
(as
seen
to
in
political
By bringing groups together in a
opposed
to
the
adversarial
setting established by the current process)
power
process
directly
influence
the
and
to use
outcomes
of
decisionmaking, this process appears to be further fueling an
already excessively political process.
310
However,
by looking
at the outcome,
if successful,
opposition
decisions
for
evaluation,
the point
made.
And,
at
that
it appears to be depoliticized.
is to facilitate
decisionmaking
appeals
there is support rather than
rather
and lawsuits,
oil and gas leasing
level
of
Regardless,
if
and permitting
than have it delayed indefinitely
whether the process is more
or
in
less
politicized is perhaps irrelevant.
Environmental Conflict Management
The
idea
that
some environmental
disputes
managed and resolved is not a new one.
might
be
For the past decade,
academics and practitioners have explored ways in which these
conflicts
might be resolved through cooperative,
building
processes
adversarial
[7]
manner
rather
than
in
the
as
the limits of administrative
traditional
are
encourage.
decisions
appeals have led
development
and
environmental
business
of
[8] Moreover, the costs
in current appeals procedures and judicial
encouraging
as
some
adversaries to the bargaining table in hopes
achieving a more desirable outcome.
involved
traditional,
that current processes often
Disillusionment with the results of court
well
consensus-
and
community
interests,
as
well
reviews
groups,
as
public
agencies to seek other means for resolving their differences.
These
alternative
problem-solving
the
And,
have
led
to
more
creative,
sessions and outcomes often not possible
traditional,
in turn,
processes
administrative
or
judicial
in
proceedings.
past successes are attracting other groups in
311
additional
cases to try resolving their
differences
rather
than automatically proceeding to the courts.
The
actual
environmental
Gerald
in
disputes
that
occurs
may take on
many
in
Seattle,
Washington,
and disputes.
discussion.
different
dispute
makes
the
forms.
Mediation
distinction
between
His distinction is helpful to this
He defines conflicts as occurring "when there is
disagreement
"is
over
values or scarce
an encounter involving a
resources"
specific
which the conflict in values is joined." [9]
that
settling
Cormick of the Institute for Environmental
conflicts
a
bargaining
"resolution
while
issue
a
over
It follows then
of a conflict is achieved when
the
basic
value differences that separate the parties are removed," and
"settlement
mutually
which
of a dispute
acceptable
they
despite
over basic values." [10]
process
fundamental
when the parties
basis for disposing of
are in disagreement,
differences
the
is achieved
differences
issues
their
in
continuing
Using Cormick's terms,
proposed here is not designed
value
the
find a
to
resolve
separating groups
like
the
the
Sierra Club or The Wilderness Society and the Mountain States
Legal
It
Foundation
will
not
or Rocky Mountain
create
universal
agreement
allocation of public land resources.
will always exist.
settle
the
Oil and Gas
on
Association.
the
proper
These value differences
The process proposed here is designed to
national forest management disputes
that
arise
because of these underlying value differences.
Many
national
forest
management
312
decisions
involve
questions
unanswered.
not
made.
To be
the
seem to
go
represented
That is the intent of the
made.
decision
must
It must
of each set of concerns.
the legitimacy
these
when
decisionmaking
viable,
each group that their best interests are
assure
the
Tradeoffs inevitably occur in decisionmaking but
were
acknowledge
in
claims
all groups believe they were fairly treated
tradeoffs
to be
at
beneficially
groups
legitimate
As such,
of others.
expense
some
affect
inevitably
even
concerns,
Yet, the decisions
are legitimate.
when conflicting,
made
All
"right" against "right."
of
proposed
process.
Environmental
conflict
is not
resolution
subject of academic thought and discussion.
disputes
environmental
the
The examples of
attempts at all levels of government
successful
merely
to
resolve
Such a list, while too
are numerous.
long to detail here, would include cases involving wilderness
and
in
proposed wilderness areas and endangered species;
proclaim
even
that "there is no middle
an
include
national
negotiables"
"caves
cooperative,
traditional,
oil
and gas
forest
under
The
reason
designation.
or
all involved would
at first glance,
which,
can be settled
in"
to
ground!"
exploration
consideration
that
such
The
confidently
list
proposal
for
disputes
Rather,
consensus-building
by
process
would
in
over
"nonout"
substituting
for
a
wilderness
is not that one side "sells
another.
cases
the
a
more
adversarial process, groups can focus on issues
of direct concern to them rather than on positions with which
313
they might "win."
Crane
was
For example,
threatened
by
when the endangered Whooping
construction
of
the
proposed
Grayrocks Dam in Wyoming [11] or when the endangered Sandhill
Crane
was
threatened by construction of
Mississippi,
[12]
Environmental
interests
order
to
protect
interests
arguing
the
sought
for
to
the
predictable,
predictable
fought
this
Dispute
and
the
endangered
species
transportation
were
to stop both
to
in
drawn.
proposals
species.
be
10
in
Development
proposals
achieved.
While
the
time-consuming court battles
the eventual outcome
by
were
differed
resolution processes were used to change
position-orientation
dam/approve
lines
obtain approval for the
forecasted for both disputes,
markedly.
battle
endangered
benefits
costly
Interstate
of the disputants
(disapprove
dam) to an issue-orientation
needs
be
protected
be
satisfied?).
and
(how
the
By
the
can
the
energy
or
changing
their
orientation, the disputants were able to then focus attention
on
ways
in
approach
achieved
led
to
resources
to
in
addressed.
a
resolve
that would
consensus on
[14]
have
been
Similar processes have
been
used
disputes over
protect
Kodiak Wildlife Refuge,
exploration
and
not
Colorado's
to
This
solutions
the
allocation
Idaho's Gospel-Hump Wilderness Area,
recommendations,
gas
settlements
in the courts.
successfully
Alaska's
be
broadened the agenda of alternative
eventually
develop
which all concerns could
wilderness
an
to
designation
endangered
bear
in
[15] and to permit oil and
in a Wyoming Further
314
[13]
of
Planning
Area
while
still preserving the area's wilderness characteristics. [16]
The
growing
management
[17]
gas
fits
conflict
The raging dispute about how and where
description
resolution.
a
The
stake
identified
of
a
Power
developed
and
forest
amenable
to
different parties to the dispute
and organized.
and
dispute
in the decisions
defined.
rulings
environmental
exploration should occur on national
the
having
on
contains criteria on disputes that can likely
resolved.
and
literature
between
balanced
to be
dispute
-- those
The issues of dispute are
well-
parties
through
has
lawsuits,
mandates.
become
These
leasing
focusing
on and resolving
in an
adversarial
and
The different
to obtain representation to their satisfaction.
all to continue
well-
administrative
parties to the dispute have exhausted other avenues by
them
lands
well-
permitting decisions inevitably must be made.
to
oil
-- are
these
Congressional
made
be
which
It is costly
process,
never
the real issues of concern.
Eight Steps Towards Resolving Oil and Gas Disputes
The
with
eight procedural steps proposed below are
four
purposes in mind.
First,
designed
they are designed
supplement the current process, not to supplant it.
developed
recognizing
the authority
intent
is
decisions,
to
not
help Forest
to
remove
They are
and the responsibility
the Forest Service in national forest management.
Service
officials
this responsibility
to
of
Hence the
make
from
viable
them.
Second, this amended process acknowledges both the judgmental
315
and scientific
aspects of the decisions
to be made.
It does
not ignore the critical need for Forest Service expertise and
experience in making these decisions.
Nor does it
the value judgments that must be made.
professional
expertise
determining
the
goes
It acknowledges that
so
far
in
what decision should be made once
implications
process
only
of
is designed
various
overlook
understanding
alternatives.
to avoid the shortcomings
actually
Third,
of the
this
current
process when highly controversial decisions are involved.
is
designed
behavior
should
to
encourage
cooperation,
not
between the potentially affected user
It
adversarial
groups.
It
promote positive rather than negative involvement
in
the process and, moreover, result in accepted, not contested,
decisions.
Finally,
this process is designed to provide
a
forum within which groups can more directly ensure that their
concerns
are addressed
precludes
administrative
decisions
provides
the
made,
or
it in no way
judicial
review
of
it
a more direct and manageable outcome as opposed
to
process.
incentives
greatest
appeal
While
it should encourage participation since
uncertainties
current
in decisionmaking.
and
costly delays
In this sense,
for participation;
in the process,
associated
with
the
the process has built
in
each group's power should
be
not by following other avenues for
intervention.
These
recommended
Secretary
eight
steps
by
Rupert
M.
in the Department
are
not
Cutler
dissimilar
when
of Agriculture.
316
he
was
to
those
Assistant
[see chapter
5]
The intent behind both Cutler's reforms and those recommended
here
is
to
more
directly
decisionmaking
and,
concerns
been accommodated.
have
these two reforms,
executed
each
and
step
in
involve
so doing,
however,
affected
assure them
The
groups
that
difference
their
between
is in how the steps are actually
what is done with the information acquired
and by whom.
in
The reforms proposed here
are
in
not
consistent with the traditional land management paradigm.
These
eight
understanding
the
procedural
have
been
developed
both the nature of the oil and gas problem
lessons of past efforts to structure effective
management procedures.
that
make
But,
these
satisfying
these
amenable
structuring
a
to
criteria
that a dispute will be resolved
elements
and
conflict
Several criteria were mentioned above
the oil and gas dispute
merely
guarantee
the
steps
resolution.
does
not
alone
successfully.
are present in a dispute the
next
step
process that facilitates negotiation and
trust of its participants
and identifying
the critical parties at the bargaining table.
and
negotiations
is
has
involving
MIT Professor
Lawrence Susskind has highlighted the critical components
successful
If
and put them into a series
of
of
"nine
steps" to consider and follow as negotiations proceed:
1. Identify
the parties
with a stake in the outcome
2. Make sure all parties are appropriately represented
at the bargaining
3. Narrow
the
table
agenda of items to
be
discussed
and
debated; confront the fundamental value differences
and assumptions separating the parties so all sides
acknowledge and accept these differences
317
4. Generate sufficient numbers of
options for consideratoin
5. Agree
alternatives
for analysis
and time horizons
on boundaries
and
6. Amalgamate impacts
7. Determine fair compensation
8. Implement
the agreement
9. Bind parties
to the agreement
[18]
Susskind's nine steps have been amended here to
address the oil and gas leasing and permitting
Service
authority
specifically
problem
to
and to
these
make
acknowledge
the
Forest
decisions.
The
specifics of this case make the binding and
implementation tasks somewhat different than those
Service
needed
bind
incentives
built
agreements,
once
these
legal means are
implements the final decision,
to
all parties
into
to
the
process
the
Forest
Because the
by Professor Susskind.
generally
more
addressed
agreement.
should
Instead,
ensure
that
In
theory
same incentives bind the Forest Service to the
spirit
of the proposed
are then supported.
not
reached,
decision.
The eight steps proposed
for the oil and gas leasing and
permitting process are:
1. trigger this supplementary process into
when it might facilitate decisionmaking.
2. convene the
decision
different groups
3. joint fact-finding
4. identify issues of concern
5. develop alternatives
318
affected
by
effect
the
6. agree on a proposed decision
7. public review of proposed decision
8. decision implementation
Each of the eight steps is described below.
Forest Service decisionmaking is generally of two types,
occurring
type
at two levels
policy.
It
how
the
agency
implement
mandates by developing guidelines,
procedures
regulations
that are then placed
An
example
in the
lengthy
would be the Further
second
Regions,
Planning
discussed
occurs when
in Chapter
officials
in
3.
the
Forests and Districts apply these internal mandates
site-specific
Palisades
leasing dispute
type of decision
Implementing
the
case,
proposals
FPA
or
general
Stipulations
and
management
Guidelines
decisionmaking.
tasks.
in
the
or permitting procedures in the Cache Creek
and Little Granite Creek cases are examples of
and
Forest
(FPA) Stipulation and Guidelines that played a critical
role in the Palisades
to
agency-
will
Service Manual.
The
The first
The Washington, D.C. Office establishes
structures
Congressional
Area
hierarchy.
of decision is that involving policy affecting
wide administration.
and
in the agency's
Since
disputes arise in both
policy implementation,
site-specific
policymaking
attempts to resolve them
should
also occur at both levels.
Step
1
Triggering The Process
Not all oil and gas leasing and permitting
controversial;
not all processes
319
yield decisions
decisions
are
that are not
viable.
Because
existing
this
procedures,
arise
decisions
decisions
that
is
merely
The
Assistant
needs to be triggered
potentially
will
when
those
by
benefit
it;
Secretary
for
for policy level disputes.
Natural
it for site specific
are
individuals
responsibility
chosen
Resources
and
this
triggers
This assistant secretary
has jurisdiction over the Forest Service.
triggers
in
3.
in Chapter
in the Department of Agriculture
Environment
Chief
supplementing
that exhibit those characteristics highlighted
the cases described
process
it
process
The Forest Service
disputes.
because they do
not
These
initial
have
for making the particular decision
two
(although
that responsibility could be appealed to them by dissatisfied
groups).
Hence
ensues.
They
they will not be party to the dialogue
that
are in a position of authority over those
charge of making the final decision.
As such,
in
their action
legitimizes the process. Moreover, by institutionalizing this
process,
the
Assistant Secretary or USFS Chief empower
the
different groups participating in it.
The
process
Assistant
upon
policy-level
(for
petition
applicant
of the
or USFS Chief
Forest
this
Chief
(for
Service
cases).
A particular public
land
affected by the decision or the lease or
can also petition to have this process
The process is designed to provide a means for
not
triggers
decisions) or the responsible Regional Forester
site-specific
potentially
Secretary
delaying decisions.
user
permit
triggered.
facilitating,
It does not represent more work for
320
agency or other participants;
the
Hence,
already occur.
that
efforts
redirected
the incentives built into
those
that only
such
be
should
process
just
cases
that
the
can
potentially be resolved will trigger it.
process is triggered when the Forest Service
The
participants.
different
sent
announcements
the
Consistent with current lease
and
to those on
the
list of interested
mailing
established
convene
already-
agency's
to
and
parties
the
[19]
media.
To
the cases that might benefit
large extent,
a
this process are self-defining.
When the Washington
must develop rules governing decisionmaking,
generally
good idea at the
a
have
outset
from
Office
officials there
what
different
are going to think about these rules and the concerns
groups
At this point there are few
will express.
they
intent
this notice should be supplemented
permit review procedures,
by
the
of
to commence this process and
Register
Federal
in
files a notice
Secretary
Assistant
or
Chief
surprises.
Similarly, when a lease or permit application is forwarded to
a
Forest
concerned
Supervisor
and likely
Decisions
which
decisions
beneficially
opposed
and
however
responses
idea who
is going
to
be
to it.
that should trigger this process are those in
different
stake;
he has a good
clash and in which
much
is
that potentially affect some
user
groups
interests
others adversely and hence will likely
made.
For
example,
should
at
be
exploratory
drilling be proposed in an area with valued scenic resources,
321
important
wildlife
habitat or
wilderness
this process should be commenced.
issues
of
concern
Moreover,
if there
In so doing, the critical
can be identified
is a mutually
characteristics,
early in
acceptable
the
process.
outcome,
it can
be determined before the predictable battle lines are
drawn.
Policy decisions broadly affecting the management of specific
areas
-- wildernesses,
further
planning
areas,
wild
and
scenic rivers -- should trigger this process. More generally,
decisions
should be triggered that will likely be
contested
at later, implementation stages if disputes are not resolved.
Similarly,
cases
announcement
of
warrant
triggering
intent to develop
where
a rule or
regulation
evaluate a lease or permit application generates
input.
range
And,
of
or
conflicting
precedent-setting decisions broadly affecting a
different
users in numerous decisions
should be subject to consensus-building
domino
initial
effect
over
time
in order to avert the
wherein they are contested
when
applied
in
process:
a
case-after-case.
Step
2
Convening Representative Groups
Three different groups participate in this
government group, an applicant group and a land user group:
The
government
Forest Service,
state
and
authority
permitting
BLM,
group represents
those
the
process
(ie.
USGS, Fish and Wildlife Service, etc.)
local agencies or ruling bodies
over
federal,
proposal.
after
This
which all
322
is
that
not
permits
have
some
a
one-step
are
granted,
however.
Instead,
identify
all
it
is
an opportunity
at the outset
requirements that must be satisfied
must be accomplished in order to satisfy them.
Company's
Little Granite Creek case,
and
to
what
In Getty Oil
the Wyoming State
and
Gas Conservation Commission and the Wyoming
and
Fish
State
Department would have been involved at the
Oil
Game
outset
rather than having to react after federal decisions had
been
made.
The
applicant
lease or permit
group
includes representatives
applicant(s)
of
as well as industry associations
or interest groups perceiving a larger stake affecting
memberships
because
of
the
a
potentially
their
precedent-setting
decision.
The
public
land user groups category represents
those
individuals or groups currently using or proposing particular
uses
for
the
includes
public
lands
environmental
regional and local level,
users,
at stake
and
in
question.
organizations
This
at
category
the
national,
grazing interests, outfitters, ORV
any other groups or individuals with an interest
in the decision.
In Step 2, these three different groups are individually
convened
and representatives selected to participate in
process.
The
Register
announcement
Assistant
Secretary or USFS
Chief's
in Step 1 indicated their
Federal
intent
commence this process by convening the different groups.
invited
concerned
participants.
groups
to participate in
the
to
It
selecting
the
(If every individual were to participate
the
323
process
would
be unwieldly and unlikely to succeed.)
These
groups are convened and representatives self-selected by
the
efforts
the
of
Assistant
an independent
Secretary
or
convenor,
Forest
at the request of
Service
Chief.
A
likely
candidate to serve as convener would be the Federal Mediation
and
Conciliation
Service,
should
it be willing
to
take
on
disputes of this nature. [20] Another possible convenor would
be the American Arbitration Association. [21] Representatives
of
these
organizations
Instead,
they
do
assist
the
not
groups in
representatives:
people
will
and accepted
be supported
for the groups
these
constituencies.
identified.
The
and
will
By
the
their
whose
decisions
Throughout
this time,
contact
the national
groups are
the process
with
and
This should facilitate convening these
government
together
in bringing
group.
together
their
regional
well-organized
Assistant Secretary and Forest Service Chief may
the convener
own
and who will be able to speak
maintain
industry
participants.
selecting
who are trusted,
they are representing.
participants
environmental
select
the representatives
The convener not only brings the
and
groups.
assist
for the
groups
but also assists them in understanding the process,
identifying
concerns
and
coordinating
efforts
between
participants within a group.
The
convenor's task of coordinating efforts within
different groups is critical in order to avoid disjointed
inconsistent negotiations.
the
or
For example, when the Sierra Club
sued the Forest Service over leasing
324
in the Palisades
Area of
Wyoming
and Idaho,
U.S.
District Court (Washington,
D.C.)
Judge Aubrey Robinson suggested that the groups try to settle
their
differences
reach
a
out of court.
settlement
before
He gave them one month
he
would
commence
to
judicial
proceedings.
While negotiations initially were encouraging,
disagreements
and uncertainty
on the part of the
representatives (attorneys for the BLM,
to
preclude
any
representatives
necessary
back
to
to
did
commitments.
DOI and USFS) helped
agreement.
not have power to
an agreement
their
The
make
and hence had to
respective
agencies
government
the
decisions
continually
before
making
and hence had to continually
for
information.
the
teams,
Additionally,
outset so they actually represented
not
one.
under
go back to agency
they
had
developed any consensus on a consistent negotiating
at
go
any
They did not have expertise in the areas
consideration
officials
final
government
two
not
strategy
bargaining
While the lease applicants and the Sierra
Club seemed able to reach agreement on an outcome that
would
accommodate their concerns to their satisfaction,
prob-
lems within
the government
Three
First,
factors
team precluded
the
this outcome.
are critical in convening these
participants
[22]
groups.
must represent all interests at
stake.
If they do not, then an overlooked group will not necessarily
support any agreement reached.
originally
Service
filed in the Palisades
was
initially
For example, when leases were
in
decided
the midst of
its
area in 1977,
wilderness
to grant the leases but the
325
the
Forest
reviews.
Sierra
It
Club
appealed the decision.
Regions
I
and
representatives
II
Upon appeal the Regional Foresters in
reached
agreement
with
Sierra
Club
not to issue any leases in wilderness
study
areas until the wilderness review was completed.
since
[23]
oil and gas industry representatives were not party to
these negotiations,
reached.
As
Mountain
a
they did not feel bound to the agreement
result,
as discussed
in
Chapter
The
the
to
[24]
second critical factor in convening these groups is
ensure that participants have
This
3,
States Legal Foundation took the Forest Service
court to force them to make the leasing decisions.
to
But,
decisionmaking
authority.
requirement is critical to avoid the problem
mentioned
in the Palisades case where government representatives had to
keep
going
direction.
respect
back
Third,
of
to
the
agencies
participants
must
for
have
information
the
trust
the constituent groups they are representing
order to make decisions that the group will support.
are
not,
there is nothing
preventing
a splinter
and
and
in
If they
group
from
forming to oppose any agreement reached.
Step 3
Fact-Finding
The
intent
behind
Steps
3
(Fact-finding),
4
(Issue
Identification), 5 (Developing Alternatives) and 6 (Agreement
on
a Proposed
Decision)
is to more directly
incorporate
the
concerns of all potentially affected public land users in the
environmental assessment process.
326
Rather than a "black box"
approach
both
to decisionmaking wherein Forest Service
acquire
and then assess
information
officials
themselves,
the
events that usually transpire in this "black box" are brought
out
into the open with those affected directly participating
in it.
In this way, critical facts are raised at the outset
rather than in criticizing analysis
after-the-fact.
Issues
of concern are raised initially and then alternatives devised
that
specifically address these issues.
process
Watt
doing,
avoids what current Secretary of the Interior
refers
afflicts
not
In so
to
as
the "paralysis by
the process.
[25]
analysis"
In the end,
James
that
the process
the
now
should
have failed to gather or consider critical facts or have
overlooked viable alternatives.
Once
the
essentially
participants
becomes
environmental
an
are
amended
convened,
version
impact assessment process.
of
this
process
the
current
As designed,
this
process satisfies NEPA requirements for assessing the impacts
of
several different alternatives before making a
The
Forest Service may want to consult with the
Environmental
requirements
additional
required
might
has
Quality
will
public
be
outset
satisfied
Council
not
in this process
scoping objectives.
This
meeting,
or
if
on
scoping
if
meeting should be held to accomplish
an
the
required,
help the participants ensure that their initial agenda
not overlooked any
these
to determine whether or
decision.
participants
to
critical
issues.
However,
have successfully been selected
represent all affected groups,
327
should
at
scoping is
the
built
into the fact-finding
and issue identification
stages and
an
additional scoping meeting will likely raise few, if any, new
issues.
The
current
first
stage
conducts
compiled
which
on the scope and boundaries
these
factors are defined,
of the
the
permitting decisionmaking:
these
is
What
different
the probability
operations?
and
in the area?
For example,
There is a
gas
leasing
what
surface
What are likely
impacts
resources and how might they be mitigated or
What
means
Who
Once
attention turns to acquiring the
of different facts relevant to oil and
exist
available
to
conduct
will likely be affected both
adversely by the proposal and
how,
on
avoided?
of finding oil or gas in the
are
are
three
assessment.
information needed before a decision can be made.
resources
make
Meetings
agreement is reached between
groups
and
the
In this amended process facts are similarly
but in a more participatory manner.
during
variety
in
process is acquiring information with which to
their decision.
held
the Forest Service
area?
drilling
beneficially
specifically,
will
they be affected?
At this point,
independent
next
four
the three groups might want to select an
facilitator
steps.
or mediator to assist them
As defined by the
American
in
the
Arbitration
Association, a facilitator:
assists
the parties
to define
the key issues and rank
them for orderly discussion, encourages the parties to
communicate clearly and makes sure that all parties'
opinions are heard, offers suggestions on the process
for problem solving, but does not offer opinions on
substantive issues, and remains available to assist
328
the parties openly in a group, but does not ordinarily
meet with them privately. [26]
In contrast,
a mediator:
educates the parties about the negotiation process and
helps them develop negotiating positions, assists
parties to understand each other's perceptions and
positions, helps the parties clarify the issues and
identify
areas
of
conflict,
cooperation
and
compromise,
serves as a "go-between" by meeting
privately with the parties, and occasionally offers
creative suggestions for possible solutions, and is
therefore concerned with the issues as well as with
the process.
The
original
Conciliation
[27]
convenor
from
the
Federal
Mediation
and
Service or the American Arbitration Association
could assist the groups in jointly selecting a facilitator or
mediator
if desired.
individuals
There are numerous organizations
nationwide
offering
environmental
and
conflict
management services. [28]
Much
information,
likely be provided
of
given the agreed upon
by the applicant
(particularly
an APD) or by Forest Service staff.
believe
that
independent
agenda,
analysis
Should
is
in the case
the
needed,
groups
private
consultants can be hired to address a specific question.
process
is iterative;
concerns,
agenda.
additional
But,
participants,
the
Forest
will
The
should fact-finding reveal unforeseen
data may be desired and added
to
the
these determinations are made together by the
not by an individual group.
Service
in
the position
of
This process puts
representing
and
protecting
surface
management
objectives rather than appearing to represent the
resources
and
applicant as in the current process.
329
other
national
forest
The
joint
alternative
issue
identification
generation proposed here has
successfully
Typically,
fact-finding,
in
after
been
at least one oil and gas
and
accomplished
permitting
a lease application or APD is
case.
filed,
the
applicant fades into the background while the Forest Service,
BLM
and/or
USGS evaluate the
proposal.
In
controversial
cases
where competing demands are placed on the same
these
federal
counter
the
agencies are then inevitably confronted
claims.
competing
The
process
provides no
user groups to get together,
forum
management responsibilities.
lose
one.
A
case
for
an
them all while still within the Forest
land
with
on
outcome
Service's
The situation is a
that illustrates
the
focus discussion
issues that actually concern them and reach
satisfying
lands,
win-
the development
of
a
different forum for decisionmaking, with a cooperative rather
than
adversarial
dialogue,
is
the
Fall
Creek
drilling
proposal.
In
Office
Fall
1978,
Getty Oil filed an APD with
in Rock Springs,
Wyoming,
for leases
Creek section of the Palisades Further
Getty
in
early
another
section of the Palisades
became
part
FPA.
of the Palisades FPA
Service's RARE II program.
the
USGS
it held
in the
Planning
Area.
officials were not aware of the ongoing leasing battle
Getty's leases had been issued in May,
area
the
USFS
Jackson,
Bridger-Teton
Wyoming,
Chapter
3]
1970, well before the
during
the
Forest
When Getty's APD was forwarded to
National
public
[See
Forest
headquarters
in
notice was routinely made of
the
330
They had
representatives immediately responded.
Club
filed their first appeal of the Regional Forester's
to
supplemented
opposition
merely
noting
this appeal with a new paragraph
Getty's Fall Creek plans and why
to
just
decision
leasing in the Palisades area and they
recommend
Service
Sierra
Forest Service review and recommendation.
impending
their
Forest
the
should be prohibited from taking action on this
APD
until after a final wilderness decision was made. [29]
Getty
that
and
not want to spend years in court before learning whether
did
ever be able to drill
in the Fall Creek case,
a
in Little Granite
At
Creek.
it
Hence,
rather than wait for the Sierra Club
be concluded with no guarantee that
to
the
courts
Getty officials decided
more active role than traditionally adopted
applicants.
four
does not know whether or not
not then become involved,
would
the
this uncertainty and delay can be
years after filing its APD,
appeals
in
Getty has spent almost $1.5 million and,
very costly.
will
As seen
they would ever be able to do so.
not
Little Granite Creek case,
play
events
They were prepared to drill then
likely follow.
would
or
foresaw all too well the
officials
by
to
APD
[30]
Getty's
encouragement,
Phil Hocker of
the
Sierra
Club, USFS Bridger-Teton National Forest minerals specialists
and
the Forest Supervisor and Getty Oil representatives
met
together at the Bridger-Teton National Forest headquarters in
Jackson
concerns
to
and
discuss
Getty's
proposal,
what could be done to
331
the
merge
Sierra
the
two.
Club's
Phil
Hocker
expressed
drilling
the Sierra Club concern that the
would be an intrusion
consideration
for
inclusion
proposed
into an area that
was
in
Wilderness
the
National
under
Preservation System.
The Sierra Club was concerned that such
an
ultimately
intrusion
wilderness
deferred
would
decision
and that,
or denied.
affect
the
Palisades
on those grounds,
FPA
it should be
[31]
Getty representatives countered with assurances that the
access
road to the Fall Creek wellsite
reclaimed
and
impacts.
They
close
Forest
developing
the
entire site
assured
Service
and
could be
reseeded
to
maintained,
mitigate
Hocker that Getty would work
and
Sierra
reclaiming
the
Club
reclamation
conducted.
Visits
Agreement
which
how
and
was
how
site.
to
reached
drilling
the
Fall
Creek
the
access
and
how
road and
developed,
road
and
site
would
be
were
made.
conditions
under
wellsite
wellsite
then
construction
activities
setting forth the
where
in
Discussion
Getty could drill its exploratory well at Fall
and
under
supervision
proceeded about the specifics of road location,
and
any
Creek,
should
reclamation
be
should
occur.
The
dialogue established between Getty Oil,
the Forest
Service and the Sierra Club over the Fall Creek well
all
allowed
three groups to determine whether or not a common ground
existed
between
accommodate
them.
Sierra
representatives
were
Because
Getty
Club concerns and
willing
332
to
be
was
willing
to
because
Sierra
Club
upfront
about
their
concerns with the proposal, the dialogue uncovered a mutually
acceptable
the
operating plan.
agreement
as
Forest Service officials
a godsend.
They were
relieved
viewed
of
the
frustrating and time-consuming burden of themselves trying to
resolve
the
Moreover,
are
between
extolled
harmonious
by Forest
two
fully reclaimed
Service
officials
Hocker
specialist
and
and
desiring
cases
but
Getty has since drilled its well
its wellsite
and access
road to both the
Sierra Club and Forest Service's satisfaction.
Phil
adversaries.
outcomes in other difficult
unsure how to achieve them.
and
these
the negotiations between the Sierra Club and Getty
often
similar,
differences
Bridger-Teton
National
In fact, both
Forest
minerals
Al Reuter describe the reclamation as "excellent"
"a model for other reclamation activities." [32]
negotiations do not occur more frequently,
the institutional
structure
however,
These
because
is not in place to encourage
and
support them.
The
process
proposed
in
this
institutional structure into place.
a
dialogue
between
affected
groups
chapter
puts
this
In so doing it promotes
such
as
that
which
occurred between Getty and the Sierra Club.
Obviously,
all cases are amenable to resolution.
when a mutually
But,
not
acceptable alternative does exists as in the Fall Creek case,
this
process will encourage the groups to determine what
might
be.
333
it
Step
4
Identifying Issues Of Concern
In Step 4, each group identifies issues of concern given
their
understanding
derived
from
approach
issues
of
Step 3.
encourages
of
direct
strategically
attention
the proposal
Unlike
the
and
its
current
implications
process,
each group to focus attention on
concern rather
might
"win."
In
than
the
those
Cache
(ie.
services
and tourism)
those
issues
Creek
shifted immediately from the community's
concerns
that
case,
specific
impact of the well on town character,
to positions
this
public
(an EIS must be
prepared
and no well should be permitted).
The point of the proposed
process
focus
is
specific
to
identify and then
attention
on
issues of concern before they are transformed
positions that then overshadow the actual concerns.
4
these
For
in the Cache Creek case what
would have been affected and in what manner?
the
public
into
In Step
issues are broken down into their component
example,
the
parts.
services
What aspects of
tourist economy would likely have been affected and how?
In what way would town character be affected by the proposal?
By breaking
down the issues in this manner,
should
better able to identify and
that
the
be
create
alternatives
specifically address these issues in the next
process.
opportunity
on
the participants
specific
taking
decision
Because
the
current
process
step
of
provides
no
for the various groups to focus their
issues,
response.
it forces
As
a
the less flexible
result,
opposition
attention
position-
to
whatever
is reached is guaranteed whether or not a
mutually
334
acceptable outcome exists.
Each
about
group has an incentive
their
generation
concerns.
-- is
The
to be upfront
next
step
a
group
to
support
for a
accommodates all issues raised.
to
provide
directly
all
not
If all concerns are
scheme
with
an
to a final decision
in the end for
that
opportunity
that
doing
so
process
judicial
fair
are
Furthermore,
not minor;
why bother
if not sincerely?
Moreover,
and legislative
for
Because
appeals,
the costs of
participating
in
is
likely
the
it is not clear
avenues will be as responsive
it
that
in
they merely
settling the difficult dispute were not
chance.
By
honestly and reasonably
themselves back on the mercy of an uncertain
judicial and legislative system.
to
accommodates
working towards a mutually agreed upon solution,
means
seemingly
it does not preclude the other options.
participating forthrightly,
throw
addressing
The point of this process is
affected parties
contribute
their concerns;
of
it is going to be difficult
decline
thorough
-- alternative
designed to determine ways
those specific issues raised in Step 4.
not on the table,
and
that
if
a
given
a
groups
participate together more than once in this process,
will
failure
to negotiate in good faith will only make future negotiations
more
difficult,
with
other
reasonable and compromising.
335
parties
less
likely
to
be
Step 5
Developing Alternatives
In the current process,
several
alternative
Forest Service officials select
decisions that are analyzed
in
depth.
This
selection is made after obtaining initial public
and
from
the
Frequently,
concerns
these
of
"preferred
one
a
preliminary
another.
More
is not the one
is rendered
evaluations.
encompass
the
frequently,
the
that
a particular group's concerns.
it is
most
And,
closely
as seen,
contested
on
that an equally legitimate alternative has not
considered.
the
been
The analysis is therefore labeled inadequate and
reassessment
valid
group or
final decision
grounds
own
alternatives do not fully
alternative"
accommodates
when
agency's
input
demanded.
since
there
is
And,
an
undoubtedly these claims
infinite
number
of
are
potential
alternatives depending upon how one bounds the analysis. [33]
The task before the participants in Step 5 is to develop
a list of mutually
discussed.
acceptable
Each alternative
alternatives
to be analyzed
is to be designed
addressing
issues raised in Step 4 and understanding the facts
in Step 3.
sure
As alternatives are developed,
that
its
constraints,
and
the
gathered
each group makes
legal requirements
and
other
concerns are understood and addressed.
Developing
side-by-side
these alternatives can best be described
problem
solving.
Rather
than
selecting
as
a
standard range of alternatives, the alternatives generated in
this
process specifically address the issues raised and
developed
cooperatively
and creatively
336
as in the Fall
are
Creek
case.
The
Forest
mitigation
stipulations
completely
avoid
resources.
group
for
of
distrust
on leases.
the
proposed
evaluated
all
the
In so doing,
manner
that
that
ensures
should
of the conclusions
wildlife
reached.
For
Club
was
stipulations
habitat and wilderness
Sierra
each
any
lease
Service
representatives
therefore did not have confidence in the
the
stipulations.
not
for
resources
were
had
been
the analysis that developed these
and
is
avoid
Forest
protecting
in
it
a
surface
mitigation
the Sierra Club
that
sufficient.
in
these
and
either
to
Palisades case,
convinced
involved
different
measures
process,
to see and in a manner
or misunderstanding
in
These
and applied
its intent.
example,
requires
or minimize potential impacts
In
are
visible
frequently
measures for exploratory drilling operations
different
measures
Service
not
alternatives
intent
They did not trust the Forest
behind
Service's
assurances because of contradictory administrative actions in
other
areas.
As a result,
they took the Forest Service to
court, demanding an EIS before a final decision was rendered.
The Washington,
that
D.C. district court judge in this case ruled
an EIS was not required because the
stipulations
were
enforceable to the extent of precluding exploratory drilling.
[See
Chapter 5]
their
argument
representatives
"won
the
While the Sierra Club lost the case in that
that
an
was
needed
was
of the organization believed that
the war this time."
district
EIS
rejected,
they
They had achieved assurances
court judge that their interpretation
337
of
had
from
the
lease stipulations was valid.
been achieved more directly and with more
have
if
consequences
This
not
the
process proposed here were
[See Chapter 5]
in
in
place.
several
it is not clear whether
Thus,
the Sierra Club's perspective will apply beyond
Palisades case.
even
far-reaching
ruling is contradicted by rulings
judge's
other cases.
or
however, might
This outcome,
Furthermore,
will
case should an APD be filed
in the Palisades
apply
it is not clear that it
the
and
case reenter the courts before a less sympathetic judge.
the
had
agreement
place
and
been reached on lease stipulation intent
and
if
Additionally,
the
proposed process were
level, then the outcome
at the policy
enforceability
in
more far-reaching than just the Palisades case.
for other cases questionning
need
the
issues (ie.
leasing
would be
In so doing,
precisely
same
the
The Wilderness Society and Sierra Club suit over
in Montana's Deep Creek Further Planning Area) would
be precluded.
example of the distrust and misunderstanding of
Another
administratively-generated alternatives is the Washakie case.
The Forest Service analysis of oil and gas lease applications
Wyoming's Washakie Wilderness indicated that 13% of
for
area
could
leased.
that
[34]
Predictably,
should
environmental groups
was
judgments
the 87% figure was much too
that
party
that
to
the
produced
analysis
this
338
and
not
high.
industry
Neither
inevitable
alternative.
be
responded
even the 13% portion should not be leased and
responded
group
be leased but the remaining 87%
the
Hence,
value
each
questionned its validity; none were convinced that their best
interests
fully
were
addressed in this
understood
and accepted
figures
had
process
proposed
involved
been derived.
in
participate
value
developing
consensual
and
and
Washakie
alternatives
In so doing,
judgments
alternatives
how the critical
The
Palisades
various issues raised.
the
decision.
that
must
eventually
None
87% and
13%
decisionmaking
here would have the groups such
the
in
proposed
as
cases
that
those
directly
address
the
these groups help make
be
made
in
generating
selecting
a
preferred
alternative.
Because
of
the
decisionmaking,
uncertainty
contingency
alternatives are developed.
this
happens
uncertainty
that
Additionally,
court
makes
and
other
these
might
that
offset
so
area or campsite is
relocating
or
usually
If
a
affected,
national
other
rulings
[35]
these
not
now
"rewards" have been
339
offset
forest
compensation
mitigating the impacts might
and
Several
developing
are
the
difficult.
then compensation to
be considered.
recreation
Compensation
-- "if
If impacts to a town's streets or
services are a concern,
costs
gas
to decisionmaking.
cooperatively
options
considered can be raised.
public
-- help
and Interior Board of Land Appeals
creatively
alternatives,
and
agreements
decisionmaking
that it is a valid approach
In
oil
it ensures an ongoing review process.
decisions
indicate
These
that must be done"
now
in
agreements should be considered
when
then
involved
be
for
considered.
considered
in
resolving many environmental disputes.
[36] For example, in
agreeing to an alternative that would both allow construction
of
the Grayrocks
Dam in Wyoming
and protect
Whooping
Crane's habitat downstream,
involved
agreed to establish
maintaining
solutions
the
and
the
the energy
a $7.5 million
protecting the habitat.
process
consider them.
consortium
"trust fund" for
[37]
can more directly address the issues
current
endangered
While
of
and judicial reviews seldom
such
concern,
raise
or
Moreover, these traditional forums frequently
preclude these solutions.
Another
developed
viable
problem
and
with
analyzed
how alternatives
is that alternatives
are
that
or are much more complex than implied are
advocated.
Service
currently
are
not
frequently
In the Little Granite Creek case, when the Forest
recommended
that
Getty Oil
Company's
exploratory
drilling permit be granted, Jackson Hole community groups and
national
environmental
demanding
that
less
scenic
alternative
and
wild
area.
They
had not been adequately
future debate.
solution
immediately
began
Getty's leases be exchanged for leases in
that it should have been.
simple
organizations
charged
considered
that
a
this
in the EIS and
It provided a rallying point
for
But, Getty responded that such an apparently
was
actually
very
complex.
One
Getty
official asked:
How would you determine what was an equitable trade or
swap?
We frequently expend large sums of money
looking for traps [oil-bearing formations] and never
find one. Here we have defined a potential trap. The
leases are worth more to us now than before we did the
340
seismic survey. [38]
After
completing $852,000 in seismic testing a year earlier,
Getty
concluded that its chances of finding oil or gas
best
described
concurred,
with
as
"excellent."
[39]
A
USGS
were
geologist
stating that Getty's prospect is atop a structure
the greatest likelihood of success in that area of
overthrust belt. [40]
question;
to
the
To Getty, a lease trade was out of the
opponents
of the well
it was a logical way
to
preserve the area's wilderness and wildlife attributes.
The
raising
alternatives
happens
is
and then rallying around
not
limited to
just as frequently
of
questionable
site-specific
at the policy-level
cases.
since there is
also no common forum there for combining fact-finding,
generation and,
For
example,
energy
only then,
a
It
generating viable
issue
alternatives.
common argument in the current debate
exploration in Wilderness is that exploration
over
should
be allowed in these areas simply to inventory the oil and gas
resources there.
This
On its face, the proposal seems reasonable.
exploration would give land managers
more
information
with which to make a land allocation decision.
Seemingly, it
keeps Wilderness Areas in their pristine condition until that
day
when
the
critically
current
But,
in
energy
needed.
stalemate
forum
where
laying
beneath
them
are
This apparently perfect solution to
the
has considerable support
this alternative
a
resources
in
Washington.
has major flaws that are seldom
it can be revised
alternative developed. [41]
341
and
a
truly
raised
viable
Step
6
Agreement On A Proposed Decision Or Rule
Step
6
process.
is
Now
perhaps
that
the most difficult
specific
issues of
identified,
tradeoffs
consensus.
As discussed earlier,
might
be involved
them
focus
must
be
step
concern
made in
order
in
this
have
been
to
achieve
a mediator or facilitator
at the request of the participants
their discussions and
develop
to help
agreements
when
possible.
To successfully reach an agreement may require expanding
the
list
of
negotiable
interrelated,
disputes.
items.
tradeoffs
can
Since
many
encompass
disputes
factors
other
If participating in a similar
process
involving a different area,
involve
aspects of a proposal beyond that being
is
in
Many participants undoubtedly will be negotiating
together on several occasions.
As
are
already widely practiced,
combined
management
on an area-wide basis,
planning process.
decisionmaking,
potential
a final
agreement
may
considered.
lease applications can
perhaps through the
forest
By expanding the context
tradeoffs
are
be
increased
for
and
negotiations facilitated.
Moreover, by consolidating leasing
decisions in this manner,
disputes involving a specific area
can be resolved comprehensively rather than incrementally, on
a
lease-by-lease basis.
where
leases
Any agreement reached would
may or may not be issued and subject
cover
to
what
stipulations.
This process will not always result in an agreement.
342
In
some
cases,
agreement,
participants
leave
arbitrator
the
may,
after
final decision
or to the Forest Service.
reached,
reaching
to a
partial
jointly-selected
If agreement
cannot be
it may indicate that the particular dispute is
suited to administrative resolution.
not
In these cases, if good
faith efforts have been made to resolve the dispute, Congress
or
the courts may be more willing
resolving
it in their
assessment
concise
thus
set
to adopt the issue and try
forums.
Moreover,
should
provide a
far
of facts and issues with
the results of the
more
coherent
which
a
and
substantive
decision might be made in these alternative forums.
Step 7
Public Review Of The Proposed Decision Or Rule
Because
permitting
the
recommendations
Forest Service,
the
agreement
provide
authority
for making
and
these
decisions
leasing
rests
and
with
the
Forest Service officials cannot merely adopt
reached
in this process.
They
an opportunity for those not directly
in these negotiations
must
first
participating
to comment on the proposed
decision
or
rule.
In
this
procedural
this
Forest
proposed
for
Service
and ensures that all
As is customary now,
Federal Register
public
the
obligations
been raised.
place
step,
concerns
have
recommendation
when
required,
hearing to obtain further feedback.
343
its
the Forest Service should
rule or decision
comment and,
completes
in
hold
the
a
The agency then
accomodates
these additional concerns in its final
or recommendation.
received
If considerable additional comments
that are contrary
agency
decision
officials
may
to the proposed
want
to
decision
reconvene
are
or rule,
the
original
participants to discuss how to acommodate these new concerns.
The
decision
may
be contested
if the three groups
do
understand and agree to the changes that were made.
tuning
review
process
were
may avoid
successfully
representative
represent
participant
consequence.
designed
and have constituent
should be the exception,
should
this
A fineif
But,
at the
outset
support,
this
collective
groups and,
thereby,
interests
of
the
to
be
outcome
not the rule; the proposed
the
not
decision
the
three
public land interests
in
general.
This
merely
final
reinstitute
decisionmaking.
negotiations
have
no
adjustment
the
to the proposed
problems
that
rule should
currently
not
plague
While the Forest Service was a party to the
that originally developed this
incentive
to drastically
revise
proposal,
the
proposal
they
to
reflect their concerns although they have authority to do so.
Such action would void the integrity of the
process,
ensure
opposition to it and taint the inevitable future interactions
with the same groups.
Step
8
Forest Service Implementation
The
Forest Service implements its decision as
in current procedures.
outlined
The agency's authority is retained by
344
this
process.
perhaps
to
It is fulfilling its Congressional mandates,
an
"harmonious"
even
as
Congress
management
statutes.
expertise
that
management
has
solution.
to
greater
is
required
[see
chapter
critical
to
4]
proper
not been sacrificed to
a
the
in
outcome
is
several
land
The
professional
national
purely
forest
political
Instead, the scientific expertise has been applied
be made.
Of course,
permitting
decisions
constitute
recommendations
cases,
many Forest Service leasing
at the
site-specific
to the BLM or
the BLM or USGS, having participated
government group,
the
agreement
and
recommendation.
or
has
if
facilitate and inform the inevitable value judgments that
must
the
degree
BLM
are
process,
USGS.
actually
In
these
in the process
abide
by
the
Forest
Service
Forest Service recommendations to the
when
in
would have little reason to undermine
not
generally
even
level
and
accepted
as issued
the BLM or USGS had no
in
the
role
USGS
current
in
their
development.
Prospects and Potential Problems
There
are
Agriculture,
several advantages
the Forest Service
for the US Department
and the US Department
of the
Interior in adopting a system such as that proposed here.
should
thereby
reduce litigation over administrative
reduce
decisionmaking.
the
It
cost
should
and
time
now
decisions
associated
generate allies for
345
the
of
It
and
with
Forest
Service
the
It
and support for the agency's decisions
immediate
is
adversaries produced by the current
designed to facilitate
specific
phases
other.
In
decisionmaking
it should generate
inevitable
Congress
delay
that
is
confidence
creating
to the current Congressional
calls
regulatory
confidence
in
hostility
over
the
reform.
and
It should
decisions and by
been
addressed.
from
the
It
increase
extensive
and
public
conflict
providing
insulates
is
administrative
the Forest Service by reducing
its
between
this process
different groups to substantively ensure that their
agencies
each
in
tensions
Furthermore,
responsive
have
upon
Moreover, it should reduce the
and the executive.
for
providing
reached and agreement on the value judgments and
tradeoffs that must be made.
now
than
process.
by
of analysis that directly build
so doing,
conclusions
rather
the
means
and
for
concerns
administrative
frequently
heavy-handed
lobbying efforts that now make decisionmaking so difficult.
Should
decisions
the Forest Service adopt this process
consistent
decisions
should
be
with
immune
arbitrary and capricious.
will
not
always
peculiarities
require
creative
previous
groups
disputes
of
any
be
agreement
from later
and
make
reached,
its
charges
of
being
Inevitably, these ad hoc decisions
consistent
particular
across
will
solutions that will distinguish them
from
Moreover,
and
The
disputes
agreements.
proposals
cases.
because many of
will be frequent participants in this
may be resolved in a broader context,
346
the
same
process,
some
applying
to
more
than just the issues at hand.
Hence,
agreements that
provide for considerable development in one area and
if
any,
in
conditions
another
in
different
inconsistent.
tradeoffs
in
a
or agreements
Instead,
that
areas
they
require
are
are
different
not
making
little,
necessarily
the
delicate
that must be made in these decisions and doing
manner
that
accommodates
the
concerns
of
so
the
participating groups.
The
Forest
Service's authority and responsibility
decisionmaking remains intact in this process.
the
process
proves successful,
strengthened.
After
two
the
for
Moreover,
if
position
is
agency's
decades of controversy
over
its
decisions, the Forest Service's image is badly tarnished.
It
now
It has often been said
has few constituent supporters.
that
a
Department
strong
conservation-oriented
of the Interior
transfer of the agency
management
agencies
interests advocate.
is all that is needed
in
the
to effect
from USDA to DOI where the other
reside.
[43]
[42]
It is a move
a
land
that
some
But, should the Forest Service be
to
then
its position as a relatively independent administrative
The
its image and regain
constituent
able
agency
rebuild
Secretary
would be strengthened,
not weakened by the
support,
process.
proposed process acknowledges the critical need for
expertise
and
staff
making these controversial decisions.
in
experience of Forest
Service
officials
It
doing,
the
process
is structured
347
to ensure
that
and
should
lend more credibility to and support for their analyses.
so
the
In
final
decisions
rather
are
based upon scientific land
management
needs
than questions of administrative procedure or law
in the current process.
as
As a result, the Forest Service can
put greater effort into other land management tasks that
are
now shelved while controversial decisions drag on.
This
process
agencies
is
not solely advantageous
responsible for public land
for
management
decisions.
There
are
also
incentives for environmental
and
groups
to
both
advocate and participate
a
decisionmaking
process.
The
in
uncertainty
federal
industry
consensual
and
delay
now
plaguing decisionmaking makes the current process very costly
for industry.
Four years and $1.5 million
after filing
its
APD for Little Granite Creek, Getty Oil Company does not know
whether
or not it will ever be able to explore
its leasehold.
Getty officials would certainly have preferred knowing before
making
this
drilling
Sierra
expense whether or not it would ever receive
permit.
Club
[44]
Environmental groups
such
and The Wilderness Society similarly
established process costly.
[45]
a
as
the
find
the
Moreover, the influence of
environmental groups in final decision outcomes turns more on
questions
they
of how leases and permits are issued,
should
exploratory
even
be
drilling
environmental
issued
permits
reasons.
at
all.
have
ever
Similarly,
are
would
in the proposed process,
occur
concern
may
denied
areas
no
for
(1-2%) lease
In the negotiations
have a greater chance of being
348
present,
been
very few
applications
ever rejected.
At
not whether
of
that
particular
preserved
than
encourage
however would
process
proposed
end.
little hope for achieving this
provides
process
current
the
specific areas should never be developed,
some
that
Should environmental organizations believe
currently.
The
among
tradeoffs
For example, by agreeing to facilitate exploration in
areas.
one area, environmental organizations may be able to preclude
exploration in another area. Furthermore, as described in the
they
case,
Palisades
have
can
more
hand
direct
in
critical precedents in this process rather than
establishing
of the judicial
it to the uncertainties
leaving
a
For
system.
both industry and environmental groups, this process provides
an
bettering
for
opportunity
and
administrative
precluding
their
without
situation
recourse
should
two important
factors
judicial
negotiations fail.
For
must
this
process to be viable,
environmental
representatives
First,
satisfied.
be
both
from
and industry groups must participate with
the
Forest Service in fine-tuning the requirements and objectives
All groups must be involved
of each step.
at the outset
in
order
to understand this process and to establish the ground
rules
that
groups
are
discussion
interest
will govern
how the process
initially
not
involved
the
possibility
group
will
not
trust
at
and
exists
the
that
management
within the agency.
capability
must
one
agency's
be
level
this
proposing it and will therefore not participate.
conflict
If
proceeds.
or
all
of
another
motives
Second,
in
a
institutionalized
When a dispute arises that triggers this
349
process,
trained
usher
Forest Service administrative office
a
mediator
the
dispute
a
order
to
facilitator should exist in
through
the
process.
Leaving
to existing Forest Service staff not
responsibility
in
or
housing
this
trained
conflict management would neither ensure that appropriate
action
is
necessary
taken nor provide the independence
to
create a credible and trusted process.
without
some
process proposed
the
Institutionalizing
administrative problems in addition
already mentioned.
financed?
How
provisions
be
will
the
Federal
fulfilled
Advisory
convening
in
to
not
those
will this process be
for example,
How,
is
here
Committee
Act
groups
and
these
encouraging an effective dialogue between them?
An
additional
inevitable
problem
is overcoming
of
bargaining
distrust
environmental disputes.
a
[46]
the
and
immediate
process
to
resolve
The mere suggestion that these
public land management disputes might be managed and resolved
inevitably
How
can
provokes several,
there
possibly be a
predictable counter-arguments:
middle
ground
between
such
If it
diverse groups, especially with respect to wilderness?
is
why
such a great
is
it
idea,
with so many advantages
not happening
now?
Aren't
environmental
community groups just coopted by such a process?
stop
the different
groups
for everyone,
What's
from going on to the courts
end if they do not like the settlement
and
to
in the
reached?
Financing
Financing
can be arranged
350
in a number of different
ways.
A
special
line
item appropriation could
be
requested
special Congressional funding on an experimental basis
be
acquired
for
the program.
accomplished
and
perhaps
financing,
special
most
appropriate
rent and production
fund supporting
successful
the most
the
might
easily
manner
in
its
royalty
this process.
objective
revenues
of reducing
the
now
not actually constitute an addition
should
agency's budget.
administrative
by
to
If the process
is
costly
opposition by producing viable decisions at the outset,
funding
of
however, would be to earmark a certain portion of
the oil and gas lease
a
Probably
or
this
to
the
If application review and analysis time and
appeal and judicial review costs are
reduced
this funding should represent
overall
this process,
an
reduction in agency expenditures.
The Federal Advisory Committee Act
Federal Advisory Committee Act (FACA) requires that
The
federal
officials
"charter,
meeting
Federal Register;
Management
establishing advisory committees
announcements
and
minutes
file
in
a
the
justification statements for the Office of
and Budget;
public announcements of meetings and
meeting agendas; invitations to the public to attend meetings
and filing of annual reports." [47] Groups that are
to
this Act's provisions are those "having fixed
selected
providing
by a federal official,
advice,
having
created
351
membership
for the purposes
an organizational
holding periodic meetings." [48]
subject
Currently,
structure
Forest
of
and
Service
avoid using advisory committees because they
officials
the
requirements
Act's
Furthermore,
to
be
too
find
[49]
"cumbersome."
Forest Service officials avoid these committees
because, as they explain, "selection of committee members can
introduce a bias which does not represent the entire range of
not assure the
moreover,
interests," and,
public
"general
[50]
public" that it is being represented in decisionmaking.
problem
Another
by
noted
the
Service
Forest
tends to become permanent because of
"membership
is
that
reluctance
There
to tell members their services are no longer desired.
is
danger
that
will
deadwood
build
up
and
the
render
committee ineffective." [51]
As described above, the proposed process goes beyond the
purpose
of
advisory committees as traditionally
conceived.
Its recommendations are developed more interactively than
the
comments
one-way
system.
of
the
current
committee
advisory
Moreover, its recommendations are then placed before
the "general public" for comment and potential revision.
three
The
proposed participant groups are self-selected with the
critical
requirement
interests
at
respective
FACA
in
stake
that
and,
constituencies.
regulations
would
they be
representative
furthermore,
trusted
of
by
the
their
Fulfilling some aspects of
the
development.
If
hinder
proposal
meetings were open, the critical dialogue between traditional
adversaries
agreeable
But,
if
-- the give-and-take that occurs in reaching
solution
public
to the problem
-- might
involvement is provided
352
be
later,
an
precluded.
this
open
meeting
format
requirements.
and
not
be
Regardless,
Department
fulfillment
may
of
necessary
at
approving
FACA's
the outset the Forest Service
the Interior may want
with
to
try
the Office of Management and
participants
in
selected
experiment with this process.
approval
fulfill
to
ease
of FACA's charter requirements by making special
arrangements
Protection
to
Agency
for
cases
for
order
to
in
For example, the Environmental
has recently obtained a
participants
Budget
in an
special
experimental
charter
rule-making
process that is very similar to that proposed here. [52]
The Question
When
The Wilderness Act passed in 1964,
permitting
included
time,
were.
that
of Wilderness
mineral
as
leasing until
a compromise
December
to the mining
oil and gas was not an issue,
[53]
Today,
however,
was not foreseen
reconsidering
rescinding
the
incentive
its
31,
4(d)3
1983,
was
At
the
industry.
other hardrock minerals
the table has turned in a way
in 1964.
As a
intent with
section
Section
result,
Section
entirely.
for preservationists
Congress
4(d)3,
Hence,
to participate
is
potentially
there
is
no
in the process
proposed here when Wilderness Areas are involved; there is no
incentive
for them to concede
exploration
to any oil and gas leasing
in Wilderness areas until Congress has
its decision later this year.
1983
rendered
Whichever way Congress decides
-- to prohibit leasing entirely,
31,
or
to allow it until
December
or to permit it until an even later date
-- final
implementation
will be shifted back to the Forest Service.
353
If
still
Congress permits exploration,
going
to
exploration
have
determine
should occur.
Wilderness Areas,
to
to
the Forest Service is
where
and
how
that
If Congress prohibits leasing in
the Forest Service is still going to
have
complete its final wilderness designation recommendations
and determine how to manage its further planning areas in the
meantime.
And,
accommodating
decisions
proposed
unless
the
will
they
conflicting
continue
to
develop
values
be
at
at
the
policy-level,
means
The
their
process
If a dialogue were
a
consensus
developed between affected groups -- which then,
would
for
stake,
contested.
here could help them to do so.
established
some
could
of
be
course,
be subject to public review -- regarding these complex
wilderness
management policies and oil and gas
permitting
conditions.
legitimate,
tradeoffs are unavoidable.
tradeoffs
overt,
Because
all
leasing
and
claims
are
groups'
But, by making these
those areas of critical concern
might
be
protected while exploration subject to agreed upon conditions
could
be
facilitated
cooperatively
areas like,
"crown
for
others.
Schemes
could
developed by all participants such
for example,
jewel"
untouched
in
of
that
be
some
the Bob Marshall Wilderness -- the
the wilderness system
-- could
be
left
while the oil and gas industry was able to explore
and produce the Overthrust Belt's energy resources
other
locations.
their
issues
unavoidable
But,
only by having these
of concern on the table and begin
groups
354
place
making
tradeoffs together will these difficult
from
the
choices
be made
in a less combative
and costly manner.
Why Do These Negotiations Not Occur Now?
Another
approach
great,
hesitation expressed about a dispute settlement
to decisionmaking
why
is
negotiations
frequently
disputes
is that,
it not happening
occasionally
as
advocated
are
not
do
now?
occur
here.
settled
if the advantages
As
but
To a
more
indicated
not
as
large
extent,
such
frequently
because
the
administrative decisionmaking process
accommodate
it.
process,
above,
clearly
established
The
are so
as
structured,
does
not
encourages
adversarial not cooperative consensus-building behavior.
institutional
bargaining
structure is not there that would
and
encourage
dispute
dialogue
is never initiated.
convince
the
"the
settlement;
accommodate
the
needed
The process is structured
Forest Service because the Forest
decisionmaker." Thus,
type
positions.
of
extreme
process
in
There
is no incentive
more
to cooperate
reasonable
that
The point is to bolster
of
in this
and
one's argument only means
might get less in the end.
is
it encourages the many different
because being
presenting
to
Service
groups to argue aggressively before the agency in support
their
The
less
you
your own
position and undermine your adversary's, not to be reasonable
or compromising.
Perhaps a more critical reason negotiations do not occur
now
is
that
each
group appears to
have
more
power
and
influence over the final decision outcome through means other
355
than the administrative process.
In fact, their power seems
And, as seen, because
least within the established process.
other
of
forums are not designed to acknowledge the
in
all groups and the need for tradeoffs
groups
little
have
incentive to
there
Furthermore,
tradeoffs.
help
decisionmaking,
effect
little
is
legitimacy
the
incentive
the manner proposed here because there
negotiate
in
assurance
that it will make a difference;
needed
to
is
no
this approach
to
decisionmaking has never been legitimized.
What Is The Role of the Forest Service?
common Forest Service response to suggested
A
that it is the agency's
is
management
mandate,
raison d'etre, to make these decisions. [54]
conflict
indeed
its
If professional
foresters were to let interest group negotiations decide
why have a Forest Service
of the national forests,
fate
all?
officials
agency
Wouldn't
the
be
abdicating
at
their
responsibilities?
A
counter-argument
decisionmaking
and
to
There
[55]
professional
judgment
is
Forest
are
a
decisions
in
a need
clearly
for
Professional
for much of
the
a
values
in
"harmonious"
a
scientific,
expertise
day-to-day
and
forest
it is also their responsibility
each set of values
has
all
represent
Forest
But, when disputes like those seen in the
oil and gas cases arise,
Service
make
Service.
critical
management tasks.
represent
to
responsibility
Service's
manner.
could be that it is also the
critical
in their decision.
role
356
in
the
conflict
to
The Forest
management
process proposed here.
its
jurisdiction
The eight steps do not occur outside
but rather within
existing administrative procedures.
actively
participate
non-vocal
the
it as
a
supplement
Agency officials need to
in this process both to represent
public that is not present as well as
technical
and
scientific
to
facts
and
to
the
provide
administrative
constraints that only they can provide.
Is Conflict Management A Coopting Strategy?
The
argument has been made that environmental
conflict
management strategies are designed to coopt environmental and
community
But,
nor
groups
development.
the process proposed here neither forces
[56]
participation
forecloses other avenues should a group believe that the
process
is
process
provides
not going to serve
that is lacking
it
in order to facilitate
its
best
a choice of how to participate;
in the current process.
in
developing
incrementally
broad
a
policies,
This
choice
At the policy
allows both industry and environmental
assist
interests.
level,
organizations
rather
to
than
questionning policy implementation in numerous
site-specific cases.
At the site-specific level, it does not
preclude the critical precedent-setting nature of many cases.
In
fact,
the
precisely
groups,
than
agreements
because
will
the cases
reached
in
site
specific
they will be supported by many
perhaps have greater
in the courts.
357
different
precedent-setting
that now end up receiving
conflicting
cases,
value
rulings
Conflict
conflict.
setting
management
There
parties
pursued.
inevitably be cases where
simply
There
there
every
precedent
resolved
There might be cases where agreement between
constitutional
But,
resolve
issues are of concern that might be better
in the courts.
the
will
processes will not
cannot be reached and
might
be
cases
the
where
courts
are
procedural
or
concerns will need to be reviewed judicially.
are
many
cases
that
are
resolvable
if
institutional structure was there to accommodate them.
processes
would make this difficult task
and
less
much
adversarial.
somewhat
By cooperating
and
the
Such
"easier"
building
consensus over these decisions it will be much more likely to
accommodate
processes
more
now
values than in
followed.
the
Solving
certainly better than none.
358
win-lose
part of the
adversarial
problem
is
CHAPTER 6 -- REFERENCES
[1] New
York
Times,
Wilderness,"
August
"US Considers Drilling Leases
30, 1981, pages
in
a
1, 50.
[2] M.
Rupert
Cutler,
"Public Involvement in
Decisionmaking,"
Journal
of
Soil
and
Conservation, 33(6):264-266, 1978.
[3] Personal interview with USFS Chief
October 1982.
R.
Max
USDA
Water
Peterson,
[4]
The process proposed in this chapter builds directly
upon the "principled negotiation" method advocated by
Roger Fisher and William Ury in Getting to Yes:
Negotiating Agreement Without Giving In, (Houghton
Mifflin Company, Boston, 1981). In this book, Fisher
and Ury discuss the problems created when groups
bargain over positions rather than issues.
They
propose a bargaining method in which first, the people
are separated from the problem (chapter 2), discussion
is centered on interests, not positions (chapter 3),
opportunities for mutual gain are created through joint
problem-solving (chapter 4) and, objective criteria
based on fair standards or procedures are applied when
possible to facilitate agreement (chapter 5).
[5]
I am grateful to MIT Political Science Professor Alan
Altshuler for raising this question and sharing his
experience
with
public administrators
in
other
countries.
[6]
ibid.
[7]
For
a
comprehensive
bibliography
of
the
current
environmental conflict management literature see: Gail
Bingham,
Barbara
Vaughn
and
Wendy
Gleason,
"Environmental
Conflict
Resolution:
Annotated
Bibliography," The Conservation Foundation, Washington,
D.C., 1981.
More specifically, see: Lawrence Bacow
and Michael Wheeler, Environmental Dispute Resolution,
Plenum Publishers, New York, forthcoming 1983; James
E.
Crowfoot,
"Negotiations:
An
Effective
Tool
for
Citizen Organizations?", Northern Rockies Action Group
Papers 3, 4:24-44, 1980; Philip J. Harter, "Negotiating
Regulations: A Cure for the Malaise?", A Report to the
Administrative Conference of the United States, 1982;
Scott Mernitz, Mediation of Environmental Disputes: A
Sourcebook, Praeger, New York, 1980; Lawrence Susskind
and Alan Weinstein, "Towards a Theory of Environmental
Dispute
Resolution," Boston College
Environmental
Affairs Law Review 9, 2:311-357; Lawrence Susskind,
James Richardson and Kathryn Hildebrand, "Resolving
359
Environmental Disputes: Approaches to Intervention,
Negotiation, and Conflict Resolution," MIT Laboratory
of Architecture
[8]
and Planning,
June 1978.
Lawrence Susskind and Alan Weinstein, "Towards a Theory
of Environmental Dispute Resolution," Boston College
Environmental Affairs Law Review, volume 9, number 2,
1980-81.
[9] Gerald W. Cormick, "Intervention and self-determination
in environmental disputes: a mediator's perspective,"
Resolve, The Conservation Foundation, Winter 1982.
[10]
Ibid.
[11]
Julia M.
Wondolleck,
"Bargaining
for the Environment:
Compensation and Negotiation in the Energy Facility
Siting Process," Master's Thesis, MIT Department of
Urban Studies and Planning, September 1979.
[12]
Robert
J.
Golten,
Conservation
Environmental
"Mediation:
A
Advocates,
or
a
Professional, volume
'Sellout'
for
Bargain?",
The
2, pages 62-66,
1980.
[13]
Congressional
Volume
Record,
123, Number
Thursday,
October
20,
1977,
170, S 17375-17400.
[14]
Interview with David Stead, administrative assistant to
Colorado Congressman Tim Wirth, October 1982.
[15]
National
Wildlife,
December/January
[16]
"Kodiak
Refuge
Case
Settled,"
1982, page 32-G.
These negotiations occurred over Getty Oil Company's
Fall
Creek exploratory well in the Bridger-Teton
National Forest.
Interviews with Al Reuter and Gary
Marple, minerals specialists for the Bridger-Teton
National Forest,
Jackson, Wyoming, November 1981;
Philip Hocker, Sierra Club Board of Directors, Jackson,
Wyoming, November 1981; and, Dick Hamilton, Getty Oil
Company District Manager, Denver, Colorado, November
1981.
[17]
See Susskind
and Weinstein,
Richardson and Hildebrand,
op.
Harter,
"Negotiating
op.
cit.;
cit.;
and,
Regulations:
A
Malaise?", A Report to the Administrative
the United States, 1982.
[18]
[19]
Susskind,
Richardson
For example,
National
and Hildebrand,
Cure
Susskind,
Philip J.
for
Conference
the
of
op. cit.
see the process used by the Bridger-Teton
Forest to publicly announce their
360
intent
to
consider an oil and gas lease or permit application.
[20]
The Federal Mediation and Conciliation Service has
laborlimited their involvement to
historically
management disputes but is recently branching out to
community and environmental disputes. U.S. Government
Manual, 1981-82, pages 520-521.
[21]
The
Dispute
Community
Service
the
of
American
Arbitration Association employs a variety of consensusbuilding strategies in disputes ranging from those
prison inmates and
between labor and management,
guards, police and citizens and environmentalists and
developers.
[22]
Phone interview with Karin Sheldon, Attorney for the
Sierra Club Legal Defense Fund, January 1983; and,
C.
interview with Mr.
Palisades area
November 1981.
(23]
A.
Robert
Service
Nelson,
Lands:
M.
Peterson,
applicants,
"Oil
and Gas
Question of NEPA
A
Land Law Review, Volume
Public
[24]
lease
Leasing
383 (D. Wyoming,
Colorado,
on
Forest
Compliance,"
3, Spring
The
1982, p. 45.
Mountain States Legal Foundation v. Andrus,
Supp.
for the
attorney
Denver,
499
F.
1980).
op. cit.
[25]
Robert A. Nelson,
[26]
Peter B. Clark and Wendy M. Emrich, "New Tools for
Introducing Federal
Resolving Environmental Disputes:
Agencies
to
Environmental Mediation and
Related
Techniques," American Arbitration Association, 1980,
page 5.
[27]
[28]
Ibid.,
Ibid.;
page
4.
see also,
Resolve,
a quarterly
publication
of
The Conservation Foundation, Washington, D.C., updating
current activities in the field of conflict management
research and practice.
[29]
Interview with Philip Hocker, Member of the Sierra Club
Board of Directors and Wyoming Chapter Conservation
Chairman, November 1981, Jackson, Wyoming; also, see
Chapter
3, note 139.
Getty
[30]
Interview with Dick Hamilton, District Manager,
Oil Company, Denver, Colorado, November 1981.
[31]
Interview with Philip Hocker, Sierra Club, op. cit.
[32]
Interview with Al Reuter and Gary Marple, USFS Minerals
361
Specialists, Bridger-Teton National Forest, Jackson,
Wyoming, November 1981; also, interview with Philip
Hocker, Sierra Club, op. cit.
[33]
See
Lawrence
Bacow,
"The
Technical
and
Judgmental
Dimensions of Impact Assessment," EIA Review, Volume 1,
Number
[34]
2, June 1980.
Oil and Gas Exploration
and Leasing Within
the Washakie
Wilderness:
Draft Environmental Impact Statement, US
Department of Agriculture,
Forest Service,
Rocky
Mountain Region, Shoshone National Forest, 1981, page
C-1.
[35]
See
[36]
Compensation is used in resolving community disputes
and has been legislatively mandated in siting hazardous
waste management facility siting disputes; see, Michael
O'Hare, "Not on My Block, You Don't -- Facility Siting
and the Strategic Importance of Compensation" Public
Policy, Volume 25, Number 4, 1977; see also, Michael
O'Hare, Lawrence Bacow and Debra Sanderson, Facility
Siting and Public Opposition, Van Nostrand, New York,
1983, forthcoming.
[37]
See Julia Wondolleck,
op. cit.
[38]
Casper Star-Tribune,
"Getty Oil Promises Granite Creek
chapter
Drilling
5.
Will Be Kept to a Minimum,"
October
8,
1981,
page A3.
[39] Casper Star-Tribune,
"Getty Woos Jackson," October 12,
1981, page Al, 12.
[40]
Jackson
Hole
Guide,
"USGS Report Says Oil
Good in Gros Ventre Wilderness,"
March 18,
Potential
1982,
page
A20.
[41]
The
major flaws with this resource inventory
argument
are:
First,
a
single exploratory well does not reveal
the resources of an entire area.
The well may miss
a
large (or small) geologic formation.
It may strike an
oil or gas deposit but, without several additional
wells, the extent of the formation cannot be known. An
entire field of wells would be required to accurately
estimate the resources beneath it. For example, before
Alaska's Prudhoe Bay oilfield was discovered, 128
exploratory wells had been drilled.
Thus,
this
alternative seems to protect wilderness areas from
development by developing them.
362
Second, this
willing to spend
argument assumes that industry is
millions of dollars to undertake
exploration
a guarantee
without
(and,
in fact, with an
explicit prohibition) that development of the resources
discovered may occur. Industry has made known the fact
that they do not intend to undertake exploration in
Wilderness Areas under these terms.
Third,
about
the
lead
ten years.
defined,
strike
time on energy
During this time,
exploratory
is
production
made,
on
wells
field,
is
is
are drilled,
production
the
development
the prospect
and,
if
a
begun.
Along
with
pipelines,
roads
and,
frequently, a "sweetening" plant for hydrogen sulfide
gas must be constructed.
The argument that Wilderness
Areas should be drilled only in the face of a
national
emergency stands only if a "national emergency" can
wait several years before it is addressed. Even still,
there
is no guarantee that the oil or gas
resources
will be there to be found.
Furthermore,
even should
the national emergency argument be accepted, how would
a "national emergency" be defined in order to know when
development
in
the Wilderness Areas
should
be
permitted?
Industry
is arguing
that, in fact, a state
of national emergency exists now and that development
of domestic energy resources should be advanced.
[42]
See,
Harold
History,
1976.
[43]
[44]
See
Chapter
K.
Steen,
The U.S.
Forest
Service:
The University of Washington Press,
5, note
A
Seattle,
57.
Interview with Dick Hamilton,
Getty Oil
Company,
op.
cit.
[45]
Interview with Philip Hocker, Sierra Club, op. cit.;
phone interview with Bruce Hamilton,
Sierra Club
Northern Great Plains Regional Representative, Casper,
Wyoming, October 1981; phone interview with Doug Scott,
Sierra
Club
Federal Issues
Representative,
San
Francisco, August 1981; and, interview with Terry
Sopher, The Wilderness Society Public Lands Specialist,
Washington, D.C., September 1981.
[46]
Julia Wondolleck,
[47]
"Public
Involvement
and
the
Forest
Service:
Experience, Effectiveness and Suggested Direction," A
Report
from
the
United States
Forest
Service
Administrative Study of Public Involvement, May 1973,
pages 58-62.
[48]
Ibid.
op. cit.
363
[49]
Ibid.
[50]
Ibid.
[51]
Ibid.
[52]
This
effort
is
the result of analysis
of
EPA
rule
making procedures by MIT Professors Lawrence Bacow and
Lawrence Susskind.
The experimental program is being
conducted
by
Lawrence Susskind and the
Harvard
Negotiation Project.
[53]
Interview
with USFS Chief
R.
Max
Peterson,
October
1982.
[54]
Ibid.; also, interviews with Gary Marple and Al Reuter,
minerals specialists for the Briger-Teton National
Forest, Jackson, Wyoming, November 1981.
[55]
See
[56]
Douglas J.
Amy,
"Environmental Mediation: A New
Approach
with
Some
Old
Problems,"
Citizen
Participation, November/December 1982.
chapter
4.
364