CHAPTER 7 RETHINKING PUBLIC LAND POLICY: INNOVATIONS IN PUBLIC PARTICIPATION AND SHARED PROBLEM-SOLVING--WITH COMMENTARY

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 7
RETHINKING PUBLIC LAND POLICY: INNOVATIONS IN PUBLIC PARTICIPATION AND SHARED PROBLEM-SOLVING--WITH COMMENTARY
Matthew J. McKinney, Ph.D. ¹
Director, Center for Natural Resources & Environmental Policy
Chair, Natural Resources Conflict Resolution Programs, University of Montana
Missoula, MT
Jim Kenna
former California State Director, U.S. Bureau of Land Management
Medford, OR
Sally Collins
Rights and Resources Group, LLC
former U.S. Forest Service Deputy Chief
Lyons, CO
Lynn Scarlett
Global Managing Director for Public Policy, The Nature Conservancy
former Acting Secretary and Deputy Secretary & Chief Operating Officer, U.S. Department of the Interior
Washington, DC

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MATTHEW J. MCKEOWN is the Regional Solicitor, Rocky Mountain Region, for the U.S. Department of the Interior, Office of the Solicitor, in Lakewood, Colorado. In this capacity, Matt oversees the legal work for every Interior Department agency within his region. Prior to taking his current position, Matt was Associate Solicitor for Mineral Resources, Associate Solicitor for Land and Water, and Deputy Solicitor. Matt also served as Principal Deputy Attorney General for the Justice Department's Environment and Natural Resources Division. Before commencing federal service, Matt spent seven years as a Deputy Attorney General for the State of Idaho. Matt received his law degree from the University of Oregon and his bachelor's degree in English (with a Film and Communications focus) from McGill University in Montreal.

JIM KENNA retired as the California State Director for the Bureau of Land Management (BLM) in the fall of 2015 after 40 years of public service. He previously served in numerous key agency positions with BLM including State Director in Arizona, and Associate State Director for Oregon and Washington. He also served as Deputy Assistant Director for Resources and Planning and as a Budget Analyst with the Department of the Interior in Washington, D.C., and in a number of field management positions in Oregon and California. He started his career as a firefighter for the Forest Service in Arizona, and worked for a number of years in Price, Utah. His experience covers a broad range of collaboration including Habitat Conservation Plans (HCPs), anadromous fish and desert tortoise conservation, border security, energy generation, transmission, land exchanges and public land grazing.

SALLY D. COLLINS has spent more than 30 years in natural resource management. Her positions included Forest Supervisor of the Deschutes National Forest in Oregon, Associate Chief for the U.S. Forest Service, (sharing responsibilities with the Chief for management of all of the 155 National Forests and Grasslands), and first Director of the USDA Office of Environmental Markets. Working for the Secretary of Agriculture, she helped to advance markets for ecosystem services provided by farms, forests, and ranches across the country. For 10 years, she has served as Co-Chair of Megaflorestais, an organization established to informally connect the top forest leaders in the world. The group has collectively shared and advanced issues around climate change, deforestation, illegal logging, REDD and associated markets (including the Amazon Fund), and tenure/governance issues fundamental to forest protection and poverty alleviation. She also consults with a number of organizations on ecosystem services values, conservation impact investment, and international forestry issues. She serves on the Board of Trustees for the American Forest Foundation and Forest Trends.

LYNN SCARLETT, former Deputy Secretary and Chief Operating Officer of the U.S. Department of the Interior, is worldwide Managing Director for Public Policy at The Nature Conservancy and Global Climate Strategy Lead. In these roles, Scarlett directs all policy in the United States and the 69 countries in which TNC operates. Scarlett also served at Interior as the Acting Secretary of the Interior in 2006. While Interior's Deputy Secretary, Scarlett initiated and chaired the Department's Cooperative Conservation Working Group and its first-ever Climate Change Task Force. She established the Interior's Ocean and Coastal Activities office to coordinate cross-departmental ocean and coastal work. She chaired the nation's Wildland Fire Leadership Council. She served on the Executive Committee of the President's Management Council. She is author or co-author of publications on climate change adaptation; ecosystem services; large landscape conservation; and science and decision making. She chairs the Science Advisory Board of NOAA, co-chairs the Landscape Conservation Cooperatives Council established in 2014 by the U.S. Department of the Interior, and co-chairs the National Academy of Sciences Sustainability Roundtable. She also served on the US Global Change Research Program Committee and is a co-convening lead author of the National Climate Assessment. She is on the Dean's Advisory Council of the Bren School of Environmental Science and Management at UC Santa Barbara. She also serves on the boards of trustees of the National Wildlife Refuge Association and is a member of the Coordinating Council of the Practitioners' Network for Large Landscape Conservation. She received her Bachelor's and Master's degrees in political science from the University of California, Santa Barbara, where she also completed her Ph.D. coursework and exams in political science and political economy.

Introduction

Public land policy has been in the spotlight over the past year more than usual. On any given day, newspapers and social media in the American West highlight issues related to wildfire, recreational tourism, habitat connectivity, energy development, national monument designations, and calls for the transfer of federal lands to states. For the first time in a long time, public land policy was part of both Democratic and Republican presidential political party platforms.² And the Western Governors' Association annual initiative, chaired by Montana's Governor Steve Bullock, is currently focused on national forest and rangeland management.³

The current public and political attention to public land policy in the American West is neither surprising nor novel. Federal public lands (not including state or tribal lands) are one of the defining features of the American West and significantly influence the region's economies, communities, and culture.⁴ They account for 28 percent of all land in the United States and 47 percent of the American West (see Figure 1, Federal Lands). More than 90 percent of all federal land is found in the eleven westernmost states and Alaska. The U.S. Forest Service and the Bureau of Land Management administer about 34 percent of the western landscape, including almost 85 percent of Nevada; more than 50 percent of Idaho, Utah, and Oregon; and more than 40 percent in four other western states.

Given the prominence of public lands in the West, it is not surprising that Westerners have debated the appropriate use, management, and even ownership of these lands since they were first established.⁵ This debate played out in different ways from 1900 through the 1960s, emerged again in the 1970s under the banner of the "Sagebrush Rebellion," then in the 1990s as the "county supremacy movement," and most recently as the federal lands "transfer movement."⁶

This historic narrative not only highlights enduring tensions and acute conflicts over public land management, but also reveals that debates over public land policy revolve around three related sets of questions.⁷ First are questions of purpose - for example: What are the objectives, priorities, or uses for which public lands should be managed? How should resources be allocated? Second are questions of process - for example: Who makes what decisions? And what role do citizens, stakeholders, experts, and local elected officials play in making decisions and implementing outcomes? The third set of questions revolves around jurisdiction, particularly the question of whether the federal government should

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retain ownership and management or whether there are better alternatives. These questions overlap each other because those who control the decision-making process determine what constitutes acceptable uses. In this respect, public lands policy and the practice of democracy are fundamentally linked. As explained by Daniel Kemmis in This Sovereign Land, public lands exemplify democracy in two important ways: by allowing equal access for all Americans and by including all Americans in the decision-making processes that determine how these lands are managed.

In light of these geographic, historic, and political imperatives, one argument of this essay is that we are not likely to effectively resolve issues of purpose and policy until we create more effective democratic processes to bring together people representing diverse interests with the best available information. The conventional approaches to public participation on public land management -- as mandated by the Administrative Procedures Act (1946), National Environmental Policy Act (1969), Federal Land Policy and Management Act (1976), and National Forest Management Act (1976) -- revolve around two basic objectives - to "inform and educate" citizens and to "seek their input and advice." As explained later, even more recent laws, administrative rules, and policies that encourage or mandate some type of collaboration fall under these two basic objectives. While these objectives, and the methods that support them, are valuable, they compel public land management agencies to serve as a kind of ringmaster in a field of competing interests. Given the design of the decision-making system, where the agency is solely responsible for the weighing and balancing of trade-offs and making...