Hierarchy of various laws and policies
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). 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.
The tradeoff between flexibility and enforceability
Adaptive Management and the Courts
As we have explained, a key long-standing question is whether and how adaptive management can be incorporated in the U.S. legal framework, which relies heavily on a priori planning and includes a number of substantive legal standards. Some scholars have made the case that adaptive management is, to a large extent, incompatible with the framework of U.S. administrative law (Allen et al. 2011). However, in the United States, courts are beginning to outline the legal parameters of how adaptive management can be applied within the context of U.S. environmental and administrative law. Ruhl and Fischman (2010) recently published an overview of adaptive management case law. They analyzed thirty-one federal court decisions—which they refer to as “the first generation” of case law—in which the judiciary speaks directly to the legality of adaptive management. They found that federal agencies lost more than half of the cases in which they used adaptive management. Several key findings emerge from their analysis (Table 4.1).
Key court decisions regarding adaptive management in U.S. courts as of 2011 (Schultz and Nie 2012)
Summary of Key Issues
Relevancy of Triggers/Thresholds
Center for Biological Diversity v. Rumsfeld, 198 F. Supp. 2d. 1139 (D. Az. 2002)
This case considered whether the Department of the Army’s plan, outlined in its operating plan and associated Biological Opinion, to collaboratively develop a mitigation program to maintain minimum water levels was sufficient to satisfy its obligation under the ESA to not jeopardize species
The court found the Army’s plan insufficient. It made several points: (1) Mitigation measures must be within the agency’s power to implement; (2) Agencies must show that they will meet substantive requirements; and (3) Potential mitigation measures must be detailed and enforceable. As the court puts it, they must be “reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and most important, they must address the threats to the species in a way that satisfies the jeopardy and adverse modification standards.”
Natural Resources Defense Council v. Kempthorne, 506 F. Supp. 2d. 322 (E.D. Cal. 2007)
This case reviewed the biological opinion for the delta smelt, as affected by operation of two major California water projects. A key issue was whether the adaptive management framework to monitor and mitigate take of the species satisfied “no jeopardy” requirements under the ESA
The monitoring framework was clear, but triggered a discretionary process where actions could be taken but were not required. What was triggered in this case was an unenforceable and discretionary process, devoid of clear requirements to take action. This was legally insufficient for meeting requirements under Sect. 7 of the ESA
Pacific Coast Federation of Fishermen’s Associations v. Gutierrez, 606 F. Supp. 2d. 1122 (E. Dist. Calif. 2008)
The court reviewed the BiOp for salmonid species affected by operation of the same California water projects. The question was the same: whether the adaptive management framework, put in place to deal with uncertainty about future effects, was sufficient to meet Sect. 7 requirements
In this case, triggered actions were an enforceable process under the terms conditions of the incidental take permit. Specific triggers points, including water temperatures at specific locations, were included that, if exceeded, would lead to violation of the terms of the permit and reinitiation of consultation prior to the announcement of the following year’s water deliveries
Greater Yellowstone Coalition v. Servheen, 672 F. Supp. 2d 1105 (D. Mont. 2009)
The court reviewed the delisting decision for the Greater Yellowstone DPS of grizzly bears. At issue was whether the National Forest plan amendments and state management plans sufficed as adequate regulatory mechanisms to ensure long-term conservation of the species
Despite the presence of population standards and a monitoring program, the court ruled the strategy was unenforceable and non-binding. The monitoring program promised nothing more than good intentions for future actions. This is not an adequate regulatory mechanism if it cannot be enforced and there is no way to ensure anything will happen. The judge, citing Norton v. SUWA (2004), also noted that monitoring is generally not enforceable under the APA
Greater Yellowstone Coalition v. Kempthorne, 557 F. Supp. 2d. 183 (D. D.C. 2008)
In its ROD for its new Winter Use Plan, the National Park Service, determined that maintaining a higher level of snowmobiles would not impair resources, despite the fact that previously set thresholds for environmental impacts had been exceeded. Plaintiffs asked why the exceeding of these thresholds did not constitute an unacceptable impact
Without some “quantitative standard or qualitative analysis to support its conclusion that the adverse impacts of the [Winter Use Plan] are ‘acceptable,’” the court found the justification in the ROD to be arbitrary. The lesson here is that all thresholds do not necessarily have to correlate with significance in terms of impacts; however, if thresholds are crossed and an agency nonetheless finds impacts to be less than significant, there must be a clear rationale offered as to how this evaluation is made
Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 553 (9th Cir. 2006)
Plaintiffs challenged changes to the status of the red tree vole under survey and manage requirements of the NWFP, asking whether the changes required plan amendment and supplemental NEPA analysis. The question involved how much leeway an agency has to make changes under an adaptive management plan in light of new information
The court held that the changes in the vole’s status contradicted what was contemplated in the NWFP’s most recent amendments and associated NEPA analysis. When agencies make substantial changes to requirements in adaptive management plans, courts will require new analysis, in the form of plan amendments and supplemental NEPA analysis. This is the case when the new information or the permitted actions are outside the bounds of what was originally discussed in the NEPA document. Just because a plan contemplates possible future actions, this alone does not obviate the need to amend a plan or supplement NEPA analysis
Oregon Natural Resources Council Action v. USFS, 59 F. Supp. 2d 1085 (W.D. Wash. 1999)
In the context of the NWFP, new information emerged regarding water quality, and species status was changed under the ESA. The court considered whether this new information required supplemental NEPA analysis
In this case, the court held that possible changes in conditions, and associated changes in management practices, had been adequately analyzed in the original NEPA document and were covered as part of the adaptive framework of the NWFP. Flexibility can be built into a NEPA assessment that anticipates changes in conditions and gives an agency the opportunity to adjust activities within certain limits
In re Operation of the Missouri River System Litigation, 516 F.3d 688 (8th Cir. 2008)
Plaintiffs challenged determinations made by the Army Corps of Engineers in an EA that changes in their management actions fell within the scope of a previous EIS
The court upheld the Corps’ decision. It noted a supplemental EIS is only required when the change in management direction is one that was not within the spectrum of alternatives analyzed in the prior EIS. Even if an agency decides to implement aspects of an alternative not originally selected, as long as the impacts have been analyzed and no significant new information has arisen, supplemental NEPA analysis is not required
One key theme to emerge out of the adaptive management jurisprudence is that the courts demand assurances that adaptive management plans meet substantive management criteria required by law. Ruhl and Fischman (2010) explain: “When agencies lose challenges to their adaptive management plans, it is often because their preference for management latitude runs afoul of the need to show they can meet substantive and procedural standards in statutes, regulations, or even their own earlier plans.” For example, an important substantive legal standard is the requirement under Sect. 7 of the Endangered Species Act that federal agencies not cause jeopardy to listed species (16 USC § 1536[a]). When enforcing Sect. 7, the regulatory agencies responsible for implementing the Endangered Species Act, as part of a process called “consultation,” issue a Biological Opinion to the agency planning the action; this document guides and constrains the action agency’s activities so that it will not cause jeopardy to the protected species.
Substantive standards such as this play a critical role in legal challenges to adaptive management plans. For example, Center for Biological Diversity v. Rumsfeld (2002) revolved around the adequacy of monitoring and mitigation strategies in an adaptive management framework that involved aquatic species listed under the Endangered Species Act. At issue were provisions in the U.S. Army’s Fort Huachuca 10-year operating plan and the associated Biological Opinion from the U.S. Fish and Wildlife Service for water savings and monitoring of species status. The court found the plan for future management actions ambiguous and unsatisfactory in light of requirements under Sect. 7; it explained, “Mitigation measures must be reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and most important, they must address the threats to the species in a way that satisfies the jeopardy and adverse modification standards” (Center for Biological Diversity v. Rumsfeld 2002). These requirements, as articulated in this case, are now repeatedly cited in adaptive management case law.
A pair of cases reviewing adaptive management frameworks for operation of water projects on the Sacramento and San Joaquin Rivers is also instructive. At issue in Natural Resources Defense Council v. Kempthorne (2007) was the Biological Opinion issued for the Delta smelt (Hypomesus transpacificus), a listed species under the Endangered Species Act . This adaptive management framework was designed to trigger management changes based on factors such as estimates of number of fish killed in water facilities, and spawning rates, and if thresholds were crossed, a working group could meet and submit recommendations that could potentially be undertaken by a separate management team. The court agreed with plaintiffs that this was too uncertain and unenforceable of a framework to support a “no jeopardy” conclusion. On the other hand, the same judge upheld the Biological Opinion for the anadromous fish species affected by the same water projects (Pacific Coast Federation of Fisherman’s Associations v. Guitierrez 2008