ECOSYSTEM MANAGEMENT: "BY ANY OTHER NAME WOULD SMELL...."

• Jurisdiction: United States

Mineral Development and Land Use
(May 1995)
CHAPTER 11A
ECOSYSTEM MANAGEMENT: "BY ANY OTHER NAME WOULD SMELL...."^*
William Perry Pendley
Mountain States Legal Foundation ^**
Denver, Colorado

"Is it Safe?"

Dustin Hoffman, one of the nation's best actors, has a new movie at the theaters. Outbreak is a departure for Hoffman. He plays the heroic action figure, jumping out of helicopters and so forth, sort of "Ratso Rizzo" and Rainman meet Rambo. Some say it is a stretch, even for the Academy Award winning, perfectionist Hoffman.

One of my favorite Dustin Hoffman movies is Marathon Man (1976), with Roy Scheider and Sir Laurence Olivier, a film most reminiscent of The Quiller Memorandum (1966) with the then-youthful George Segal. Both films feature the hero falling under the spell of a beautiful and mysterious blonde woman—who turns out to be in on the dark deeds being undertaken—and Nazis. In The Quiller Memorandum, the Nazis were of the "neo" variety, while in Marathon Man, they were the old fashioned kind, or maybe just old.

In Marathon Man, Dustin Hoffman's character falls into the clutches of Sir Laurence Olivier's character, a Nazi war criminal who, after years hiding in Uruguay, has journeyed to New York to

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retrieve millions of dollars in diamonds hidden there. Fearful that Hoffman's older brother (Roy Scheider), an intelligence operative, has laid a trap for him, Olivier's character—a former dentist—seeks to learn the truth by torturing Hoffman. Hour upon painful hour he drills into our hero's healthy teeth, pausing only long enough to ask, "Is it safe? Is it safe?"

Of course since Hoffman's character doesn't have a clue as to what is going on he is forced to suffer the terrible fate of being in the clutches of someone who wishes him only ill. Hoffman doesn't know what "Is it safe?" means, other than that it isn't in his best interest and that the only thing for him to do is to escape, which is what he does.

Alice in Wonderland

I thought of the high-pitched whine of Olivier's drill, the painful screams of Dustin Hoffman and the endless refrain, "Is it safe?," the other day as I contemplated "ecosystem management." As far as I am concerned, the meaning of "ecosystem" is as unknown and unknowable to us as was the meaning of "safe" to Dustin Hoffman's character.

However, one thing is quite clear. The use of a word that has no precise scientific definition means that, as with Humpty Dumpty in Alice's Adventures in Wonderland, the word will mean whatever Babbitt and those working for him "choose it to mean—neither more nor less. As a result, the use to which "ecosystem management" is put, for my clients, for many of your clients, and for those throughout the West who depend on the use of federal

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lands for economic and recreational activities, is totally in the hands of bureaucratic decision makers within the current Administration. Unfortunately, the Clinton Administration—from its earliest days—has demonstrated its animosity toward the economic and cultural vitality of the West. U.S. Senator Ben Nighthorse Campbell (R-CO), for example, called the Clinton policies an attack "on my neighbors and my friends."

It would be somewhat refreshing therefore, if federal officials would step forward and announce that the Clinton Administration has decided that all economic activity West of the 100th Meridian and short of the Cascade Range should cease and that henceforth it would utilize a variety of scientific mumbo jumbo, including "ecosystem management," to accomplish this objective. (As evil as he was, at least Olivier's character never told Hoffman's that the dental work he was performing would improve his teeth.) Instead, we are assured that use of "ecosystem management" is good news for us and our clients since it will ensure that all of us will be able to participate in quick decision-making, the end result of which will be that we will be able to get right to work: exploring and drilling for oil; finding and digging for ore; harvesting trees; or grazing livestock. We know better. It will become just one more layer of review and analysis leading to more land placed off limits to economic and recreational activity. We have every reason to be suspicious.

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"Don't Confuse Me With The Facts; My Mind's Made Up."

For a brief and straight forward discussion of the question of ecosystem management, I recommend Becky Thomson's "Ecosystem Management: Great Idea, But What Is It, Will It Work, and Who Will Pay?" found at page 42 of the Volume 9, Number 3, Winter 1995 issue of Natural Resources & Environment of the ABA Section of Natural Resources, Energy, and Environmental Law.

I have only one minor quibble with what Ms. Thomson has written. I don't think it's a "great idea." I don't think she does either given her conclusion:

Senator Hatfield asked how ecosystem management should be defined, implemented, and funded. Without really knowing the answers to any of these questions, the federal government is forging ahead. What we do know, is that for the near future, the policy of ecosystem management will be yet another overlay on top of existing environmental and public land law and processes.

As a result of these unanswered questions, the concept of "ecosystem management" is fraught with difficulty. First, as Ms. Thomson points out, no aspect of ecosystem is defined so to lend itself, not just to effective congressional oversight or judicial review, but to effective implementation, not to mention informed public involvement. This is the case since it involves such vague and meaningless terms as "ecosystem" (that may be as large as the entire planet or as small as a drop of water); "conservation biology;" and "biological diversity or biodiversity."

Not only are the terms incapable of precise definition, they are not even rooted in good science. The 1950's view of

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ecosystem as a "superorganism" with each plant and animal community proceeding toward "harmony," is in direct conflict with the 1970's appreciation, not only for the chaos seen in nature, but for its randomness. Conservation biology theories are based on work done with invertebrates and some ocean island populations that has not been extended to terrestrial habitats and vertebrates. Biodiversity, as Ms. Thomson notes, is founded upon "the belief of ecologists that the more diversity" the better. Yet beliefs, hypotheses, and theories are hardly the basis for an unprecedented rewrite of land management policies.

This lack of precision in defining and scientific foundation for ecosystem management undermines not just the public policy basis for moving forward, but the ability of decision makers and public land managers to apply the principles. As the Committee of Scientists peer review committee chided in 1979, regarding forest diversity regulations, "it is impossible to write regulations which are specific on how [biological diversity] is to be done in all regions, in a wide variety of vegetation types and with a wide range of natural and human factors to consider."

Ms. Thomson demonstrates that most believe that the National Environmental Policy Act would have to be rewritten to accommodate the "interrelationships" that are key to ecosystem management. Yet even where statutes need not be rewritten, agencies' programs will be turned on their heads. Note, for example, the Bureau...