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Adaptive Management in the Courts


J. B. Ruhl


Vanderbilt University - Law School

Robert Fischman


Indiana University Maurer School of Law

January 26, 2010

Minnesota Law Review, Vol. 95, No. 2, 2010
FSU College of Law, Public Law Research Paper No. 411
Indiana Legal Studies Research Paper No. 154

Abstract:     
Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with mixed reviews. Their evaluations, however, have rested on theory, program-specific surveys, and isolated case studies. This article provides the first comprehensive review of adaptive management from the perspective that likely matters most to the natural resource agencies practicing adaptive management - how is it faring in the courts?

Part I of the Article examines the theory, policy, and practice of adaptive management, focusing on the experience of the federal resource management agencies. The end product in practice is something we call “a m-lite,” a watered down version of the theory that resembles ad hoc contingency planning more than it does planned “learning while doing.” This gap between theory and practice leads to profound disparities between how agencies justify decisions and how adaptive management in practice arrives at the courthouse doorsteps.

In Part II we review how these disparities have played out in courts considering claims that agency practice of adaptive management has not lived up to its theoretical promise or to the legal demands of substantive and procedural environmental law. We extract three key themes from the body of case law in this respect.

Part III extends from the existing case law to draw lessons for agencies and Congress about the future practice of adaptive management. Our ultimate message to agencies is that a m-lite can be an effective decision method - and one that survives judicial scrutiny - but agencies must be more disciplined about its design and implementation. This includes resisting the temptation to employ adaptive management to dodge burdensome procedural requirements, substantive management criteria, and contentious stakeholder participation. If faithfully followed and enforced, this model, despite its flaws, could serve as an important component of natural resources policy to confront problems of the future as daunting as climate change.

Number of Pages in PDF File: 61

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Date posted: January 26, 2010 ; Last revised: January 16, 2011

Suggested Citation

Ruhl, J. B. and Fischman, Robert, Adaptive Management in the Courts (January 26, 2010). Minnesota Law Review, Vol. 95, No. 2, 2010; FSU College of Law, Public Law Research Paper No. 411; Indiana Legal Studies Research Paper No. 154. Available at SSRN: http://ssrn.com/abstract=1542632

Contact Information

J. B. Ruhl (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
Robert Fischman
Indiana University Maurer School of Law ( email )
211 S. Indiana Avenue
Bloomington, IN 47405
United States
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