Backgrounders:


Richardson to lay out water agenda for New Mexico today
Albuquerque Journal; 10/11/2006

USDA officials in Montana to tout Sporting Conservation Council
Missoulian; 08/18/2006

Montana conservation project wins national award
Missoulian; 07/10/2006

State of the Rockies 2006
Panel: Key to ranching's future is employing new techniques
NewWest.net; 04/13/2006

Interior official touts 'cooperative conservation' at Montana conference
Missoulian; 09/26/2006

Interior secretary gets an earful at Washington 'listening' session
Idaho Falls Post Register (AP); 08/10/2006

Former governor returns to Idaho for final listening session
Idaho Statesman; 10/10/2006

Related links

A Look Ahead:
Ecosystem Restoration: Efforts to repair years of mining damage in Montana's Clark Fork River Basin can provide a template for similar projects in other states.

Western Perspective:
Seeing Montana's restoration economy

University of Montana 30th annual Public Lands Law Conference

In my previous Western Perspective column, I described several themes that emerged at the 30th annual Public Land Law Conference at the University of Montana School of Law, including a trend toward incorporating more collaborative approaches to achieving ecosystem restoration in damaged lands and waters such as those in the Clark Fork River Basin. Deputy Interior Secretary Lynn Scarlett emphasized the benefits of “cooperative conservation” in her keynote address, describing examples in which regulators and responsible parties have taken unconventional approaches to reach conservation objectives.

In his analysis column, Daniel Berger raised the question of whether cooperative conservation is truly a collaborative approach, prompting several readers to submit comments expressing skepticism about that policy specifically and more generally about the value of incorporating collaboration into public resource management. I cannot and would never presume to answer for this administration’s policies, but I am always willing to take on the idea that collaborative initiatives are little more than sell-out compromises in which the public inevitably loses.

Between 1996 and 2000 I was the managing editor of a small but well-circulated journal called the Chronicle of Community. In our short publication span (which culminated in the book "Across the Great Divide: Explorations in Collaborative Conservation and the American West"), we featured detailed stories, commentary, and resources related to the rapidly growing collaboration movement in the West. Although we embraced the direction of these efforts, we were far from idealistic cheerleaders, and our essayists included collaboration critics such as George Coggins and Marc Reisner.

Nonetheless, it was impossible to be immersed in this work without being inspired and occasionally overwhelmed by the real, on-the-ground difference that these “coalitions of the unalike” (as my colleague and co-editor Don Snow termed them) could produce. In some instances, they worked out flexible irrigation schedules to allow critical streamflows to maintain fish habitat; in other cases they engaged landowners, regulators, and environmental advocates in designing better land management plans to improve riparian health and livestock production.

On a larger scale, collaboration among diverse stakeholders—often pushed to the table by legal mandates or the threat of litigation—has created new governance structures such as the recently signed interstate agreement to manage the North Platte River in order to protect critical habitat for threatened and endangered species while continuing to provide water for agriculture and other uses.

As we observed once in the Chronicle of Community, “the collaborative conservation movement is highly place-specific — indeed, quite dependent on the personalities of the individual participants. Efforts to make ‘models’ or even to draw broad ‘lessons’ from successful initiatives are risky and usually more complicated than their summary descriptions allow. Yet there are lessons to be learned from these experiences, and their successes deserve analysis. Equally deserving of examination are those efforts that have bogged down or fallen apart altogether: Were they too big? Were the stakes too high? Did one party hold far more power than any others?”

Although written in 1999, those questions remain just as relevant today—perhaps more so, given the broad policy initiatives that seek to inject collaboration into standard agency practice. See, for example, the 2005 policy memorandum issued by the OMB and CEQ, setting forth "Basic Principles for Agency Engagement in Environmental Conflict Resolution and Collaborative Problem Solving" . See also the recommendations of the National Environmental Conflict Resolution Advisory Committee which concluded that the substantive objectives of the National Environmental Policy Act would be more effectively achieved if the agencies engaged the public earlier in the decision making process using more collaborative processes.

Thus, public resource managers are increasingly directed to “go forth and collaborate.” Whether this will result in a more meaningful relationship with diverse stakeholders and improved land health will depend on the readiness of all involved—and the quality of the processes they employ.

Writing all such initiatives off as sell-outs, or comparing the participants to the Vichyssoise Nazis doesn’t really move us ahead. Instead, we ought to be looking to learn, both from their successes and the failures. Ask what conditions made it possible for local leaders to bring people to work with one another, to learn when such an approach might be appropriate. Ask about the benefits of working partnerships for all involved, to learn about the incentives for such collaboration. And ask the hardest questions about what these groups’ many hours of work have produced, to learn how to define and measure success.

In the years since the Chronicle of Community ceased publication, reams of scholarly research has been published on these questions. We have a great deal of information now upon which to base our evaluations of collaborative initiatives. These groups continue to emerge, whether from the grassroots or as a result of ambitious federal policies. They are a reality in today’s public resource management landscape and offer practical and diverse lessons in the realm of the possible. Collaboration is one of a number of valuable conservation tools.

As for the Clark Fork River Basin, the story is unfinished. That it took hard-fought litigation to get folks to work together is no surprise—nor that the motivations for their cooperation differ, or that they still harbor disagreements over various aspects of liability or implementation. The real victory here is that they have recognized their common interests, both in process and in outcome, and they are working together to restore a functioning river. Stay tuned.

Sarah Bates Van de Wetering was the managing editor of the Chronicle of Community and was a contributing editor to the book "Across the Great Divide: Explorations in Collaborative Conservation and the American West" (Island Press 2001). She currently works as a senior associate with the Public Policy Research Institute at The University of Montana, www.umtpri.org, where she works on a variety of issues related to the governance of natural resources.

By Sarah Van de Wetering
Public Policy Research Institute
University of Montana
for Headwaters News
October 26, 2006

A remarkable gathering in Missoula last month examined the national significance of the Clark Fork River Basin’s ambitious ecological restoration effort.  After two intense days of discussion (including an afternoon on a bluff overlooking Milltown Dam), it was clear that the confluence of federal, state, tribal, and local initiatives in Montana provides important lessons for those seeking new life for hard-used landscapes throughout the country.

Speakers at the 30th annual Public Land Law Conference repeatedly emphasized the importance of both incentives for cooperation and strictly enforced standards in shaping legal institutions for long-term environmental well-being.  Several noted the challenges of defining the desired endpoint of restoration (often referred to as the “baseline”), while others commented on the need to overcome the formal boundaries of black-letter law to reflect the changing needs of dynamic ecosystems.  Some had specific suggestions for evolving federal policies on natural resource damage (NRD) assessment and restoration, which are currently the focus of a Department of the Interior federal advisory committee.

Several federal statutes — Superfund, Clean Water Act, and the Oil Pollution Act — include provisions for recovering damages for harms to biological and physical resources.  Under these authorities, NRD lawsuits by federal, state, and tribal governments have sought millions of dollars in compensatory damages from parties held legally responsible for pollution and other environmental harms.  These complex cases typically involve multiple parties, challenging technical issues, and many still-unresolved legal issues.

As described in a previous Headwaters column, the State of Montana filed an NRD lawsuit against Atlantic Richfield Company (ARCO) in 1983 to recover damages for mining-caused injuries to the Clark Fork River Basin’s water, soils, vegetation, fish and wildlife, and for the public’s lost use and enjoyment of these resources.  As a result of a partial settlement in 1999, the state received $215 million, including about $130 million earmarked to restore or replace the injured resources.  While the federal Environmental Protection Agency (EPA) is in charge of the remediation phase of clean-up, the State of Montana leads the partnership that is planning and implementing restoration goals in the Clark Fork Basin.

The conference, titled “The Law of Ecosystem Restoration,” was jointly organized by the student editors of the Public Land and Resources Law Review of the University of Montana’s School of Law and the University of Montana’s Public Policy Research Institute, and ran from September 25-27, 2006. 

It began with a field trip to the Milltown Dam removal and restoration site, just five minutes from downtown Missoula but right on the cutting edge of restoration planning and implementation.  Standing on a bluff above the dam, about fifty people viewed the emerging confluence of the Blackfoot and Clark Fork rivers, made visible by the reservoir drawdown in preparation for the dam removal work that will extend over the next several years.  They heard experts from the State of Montana, EPA, Missoula County Health Department, and the Army Corps of Engineers describe the work already underway to transform a large plug of toxic mining waste to a functioning river system where bull trout will be able to move upstream for the first time in a century.  And they felt the enormity of the project in a way that could not have been possible just sitting in a lecture hall looking at slides and maps.

At the formal conference kickoff, Deputy Secretary of Interior Lynn Scarlett delivered a keynote address on federal policies for NRD assessment and restoration.  Scarlett emphasized the notion of “cooperative conservation,” an initiative she has been instrumental in developing during her six-year tenure in the Department of the Interior.  She advocated a number of initiatives that move litigants “out of the courtroom and onto the ground,” and gave examples that included off-site habitat restoration to compensate for industrial impacts on bird nesting areas.  She lauded the work in the Clark Fork River Basin as a good example of the kinds of partnerships that need to form in order to achieve lasting restoration.  (A later speaker, who also works at the Department of the Interior, remarked that “Montana wrote the book on cooperative conservation.”)

In an overview of NRD law and policy the following morning, University of Washington Law Professor William Rodgers noted the importance of success in the Clark Fork River Basin as an early indicator of how to implement NRD settlements.  Partnerships such as NRD trustee councils, he said, are potentially very creative institutions, and can take on issues that go beyond the bare requirements of the law.  It’s a tricky business to define the parameters of restoration, he remarked, but NRD law offers a great opportunity for “a grand scheme of reciprocity” — people learning to manage their commonly held resources in a way that benefits all.  Professor Rodgers urged the full inclusion of Indian tribes in all restoration planning and implementation, noting that they bring a unique and indisputably long-term view to the table.

One of Professor Rodgers’ observations was that NRD cases are so complex that participants might feel that they’re playing a game of pin-the-tail-on-the donkey.  Different legal rules and jurisdictional responsibilities apply depending on whether you are in the remediation or restoration phase of the work, leaving those involved sometimes confused about where they fit and what comes next.  Indeed, a number of speakers in the following sessions urged a better melding of remediation and restoration* planning, some pointing to the Clark Fork Basin as an example of this integration in practice. 

Several speakers brought lessons from outside the basin, drawing on their experience under different guiding laws (such as the Oil Pollution Act) that calculate natural resource damages differently and provide more incentives to form partnerships to accomplish restoration work.  Several harkened back to Deputy Secretary Scarlett’s keynote address, mentioning that the trend in federal NRD policy is to encourage cooperation in order to facilitate quicker, more cost-effective restoration work.  They emphasized the importance of citizen involvement throughout the process, highlighting the opportunity this gives residents of a damaged area to take the lead in developing a vision for the place in which they live and thus defining the goal toward which restoration will aim.  One speaker, urging citizens to engage early and thoroughly, described community involvement as “the oxygen that allows trustees to move forward.”

After Montana Attorney General Mike McGrath provided an overview of the Clark Fork River Basin NRD litigation and settlement, a Clark Fork panel focused on the lessons learned in this work so far.  State and federal officials shared the discussion with landowners and representatives from the Confederated Salish and Kootenai Tribes, ARCO, Clark Fork Coalition, and Butte-Silver Bow.  Among the themes developed in this panel, perhaps the most striking was the accumulated years these individuals had devoted to the work of just getting to the starting point of real restoration work.  Several noted that they had small children when they first got involved in the Clark Fork Basin, but that these offspring are now young adults.  They urged evolution of law, policy, and practice to move settlements along faster, to streamline studies, and to include early and visible restoration work to make clear to all that results will follow the many years of procedural wrangling.

The final day of the program featured tribal and federal participants in the Coeur d’Alene River basin restoration, which is dealing with many of the same mining-related impacts as the Clark Fork River Basin.  Several speakers with the Coeur d’Alene Tribe stressed the “unwavering long-term view” that Indian people bring to NRD negotiations, and noted that tribes consistently favor permanent solutions to address polluted landscapes, not simply sealing pollutants underground or banning fishing or recreation in contaminated areas.  Although Idaho was generally mentioned as an example of “scorched earth” litigation compared with Montana, the audience also heard about an innovative partnership in the Coeur d’Alene valley in which EPA and its partners funded the purchase of a conservation easement to provide clean feeding habitat for tundra swans in the otherwise contaminated basin.

At the end, several themes emerged from this gathering.  First, as one speaker put it, we can’t just focus on the science and law of restoration; it is an art, as well.  Success will depend on many ingredients:  strong and enduring relationships among participants; willingness to cross jurisdictional and other boundaries; long-term vision on behalf of future generations; and willingness to cooperate, backed up by the certainty of strict sanctions if legal duties are not met. 

The creative approaches to restoring the Clark Fork River Basin — demonstrated most immediately by the imminent removal of the Milltown Dam — give hope that we can use and adapt the law to achieve a more sustainable relationship with the landscape in which we live.

*Editors note: According to the National Oceanic and Atmospheric Administration, here is the difference between these two terms:

Remediation - Also known as clean up, remediation is taking action to reduce, isolate, or remove contamination from an environment with the goal of preventing exposure to people or animals. Examples include dredging to remove contaminated sediment, or capping to prevent contaminated sediment from contacting benthic organisms.

Restoration - Improving or replacing habitat that is injured. Usually follows remediation.

Sarah Bates Van de Wetering is a Senior Associate with the Public Policy Research Institute (PPRI) at The University of Montana, which co-sponsored the 2006 Public Land Law Conference.  She has written extensively about public resource law and policy, including five books with Island Press and numerous articles and reports.  Readers interested in “cooperative conservation” mentioned in this article may wish to read PPRI’s Collaborative Governance Policy Report, The Legal Framework for Cooperative Conservation (PDF).