Adaptive Management and Law

Next in the hierarchy are administrative rules and regulations. Rules and regulations are developed by the executive branch’s numerous federal agencies responsible for the implementation and enforcement of various statutes. For example, the Environmental Protection Agency is primarily responsible for the development of regulations for the Clean Water Act; similarly, the U.S. Fish and Wildlife Service is responsible for developing the regulations that give additional specificity to the provisions of the Endangered Species Act . As an overarching statute, the Administrative Procedures Act guides the development and enforcement of rules and regulations by federal agencies by allowing for public involvement and judicial oversight of the executive branch’s interpretation and implementation of laws from Congress.

When federal agencies go through formal rulemaking procedures, there is generally public notice—published in the Federal Register—and an opportunity for comment. The resulting rules and regulations provide the details needed to further define the interpretation and means of enforcing the overarching, but often vague, statutory language. For example, the Endangered Species Act prohibits the “take” of an endangered species and provides a definition of “take” of a species as actions that “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” such species (16 U.S.C. 1533[19]). Regulations promulgated by the U.S. Fish and Wildlife Service provide a more refined definition of “take,” specifically expanding on the statutory definition of ‘‘harm’’ to include “any act which actually kills or injures fish or wildlife, and emphasizes that such acts may include significant habitat modification or degradation that significantly impairs essential behavioral patterns of fish or wildlife” (50 CFR 17.3). In this way, the regulatory definition further explains the meaning of the statute. When rules are finalized, the rulemaking process and the content of the rule are reviewable by the judiciary. For example, the Supreme Court upheld the U.S. Fish and Wildlife Service’s regulatory definition of “harm” in the case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995). Once finalized, rules and regulations are generally legally enforceable in a court and represent the agencies official interpretation of the relevant statute.

Finally, there are a number of more informal agency policies, including departmental manuals, internal memoranda and guidance documents, etc., that are developed without formal rulemaking procedures under the Administrative Procedures Act. For example, the U.S. Forest Service has both a “manual” and “handbook” providing guidance to agency officials. The manual contains legal authorities, objectives, policies, responsibilities, instructions, and guidance, and the “handbook” provides more specialized guidance and instructions for carrying out the direction issued in the manual. Court decisions regarding the legal enforceability of these types of management tools are mixed. Determinations are made on a case-by-case basis, and the outcome often depends on a number of factors, including the procedures taken, whether the policies prescribe substantive or interpretive rules, the agency’s intent, and the Congressional mandate involved (Fischman 2007). Generally speaking, however, guidance documents are not legally enforceable in a court of law (Ruhl and Fischman 2010). As Fischman (2007) explains: “The majority of courts that examine the question closely find agency manuals to be non-binding, internal guidance unless some special circumstance raises the legal status of the policy. The few manual provisions promulgated under notice-and-comment procedures, though, are regarded by courts as binding on agencies.”

The relative enforceability of various types of law becomes of particular importance with regard to adaptive management. At present, no statute explicitly defines adaptive management and agency regulations that do are generally silent about how to implement the approach. For example, the U.S. Forest Service’s regulations define adaptive management as, “A system of management practices based on clearly identified intended outcomes and monitoring to determine if management actions are meeting those outcomes; and, if not, to facilitate management changes that will best ensure that those outcomes are met or re-evaluated. Adaptive management stems from the recognition that knowledge about natural resource systems is sometimes uncertain” (30 CFR § 220.3). The specifics of integrating adaptive management into federal agency management and planning, however, takes place informally.

The U.S. Department of Interior’s approach for implementing adaptive management provides another example. The formal regulatory provision related to adaptive management is in the agency’s regulations for its environmental impact assessment procedures under NEPA , where it states that the agency “should use adaptive management, as appropriate, particularly in circumstances where long-term impacts may be uncertain and future monitoring will be needed to make adjustments in subsequent implementation decisions” (43 C.F.R. § 46.14). In 2007, the Secretary for Interior issued an order requiring agency officials to use adaptive management whenever possible. That same year, the agency released a technical guide (revised in 2009) in order to “aid U.S. Department of the Interior managers and practitioners in determining when and how to apply adaptive management” (Williams et al. 2009). The Department of Interior’s technical guide has already undergone one revision, and the agency recently released a companion applications guide (Williams and Brown 2012). This approach leaves the agency with a great deal of discretion regarding both when adaptive management is “appropriate” and how to conduct adaptive management.

The current integration of adaptive management in federal agency decision-making highlights the tension between flexibility and enforceability . As Fig. 4.2 illustrates, there is generally an inverse correlation between a management approach’s enforceability by those outside the agency and the flexibility with which the agency can interpret and implement the approach. The major advantage of using informal guidance is the flexibility it affords. At the same time, relegation of adaptive management to agency manuals and guides leaves much of the agency’s approach unenforceable. This tension is worthy of further investigation, because, as demonstrated through an examination of several court cases below, successful implementation of adaptive management requires some measure of both.