Meaningful Engagement in Public Lands Decision Making

59 Rocky Mt. Min. L. Inst. 21-1, 21-36 (2013)

U of Colorado Law Legal Studies Research Paper No. 17-11

39 Pages Posted: 4 Dec 2017

Date Written: 2013

Abstract

Many have had the experience of engaging public land managers during the decision-making process, whether by comment, administrative appeal, or judicial action. The experience is not always a happy one. Decisions involving our public land resources are often complex and controversial, and the agency decision maker generally exercises wide latitude in reaching a decision. Rarely does an agency exercise its discretion exactly as a commenter might want. Accepting a critique of a proposal offered by an outside third party may seem unwise to an agency official, who may rightly or wrongly perceive the criticism as ill-informed or biased. Nonetheless, agency officials understand that in the modern era opportunities for public participation are necessary, and often required by law. Some embrace their obligation to engage the public; others do little more than tolerate it. But beyond any legal requirements or perceptions of public involvement by agency officials, it is fair to ask whether engaging the public serves any moral or utilitarian purpose. And of particular importance, does improving the public engagement process result in final decisions that both the public and the agencies see as fair and good decisions?

This chapter considers the value of public involvement in agency decisions involving our public lands. It focuses primarily on the decisions of the multiple use land management agencies — the U.S. Forest Service (Forest Service) and the Bureau of Land Management (BLM) — but at least some of the analysis applies as well to more limited purpose land management agencies such as the National Park Service and the U.S. Fish and Wildlife Service. It identifies some flaws and risks associated with the traditional approach to public participation before concluding that, in most cases at least, the advantages outweigh the risks. It then considers approaches to public participation that are likely to yield good results. For purposes of this assessment, a “good” result is one that, at a minimum, the public generally understands and accepts even if people disagree with it, because the agency has adequately justified its decision on credible legal and policy grounds. A good decision is also one that is designed to, and in fact does, protect the public interest in the affected public land resources. While identifying the public interest necessarily involves some level of subjective judgment, it should at least encompass interests beyond those of the various stakeholders who engaged the agency, and should include the interests of a broader community, such as disadvantaged people, future generations, and perhaps even non-human communities. In approaching this subject one is inclined to focus on process, and process is surely important. I will argue, however, that agencies should give equal consideration to the design of substantive proposals, recognizing that proposal design can significantly impact the ability of parties to engage the agency in a meaningful way.

Keywords: Civic Engagement, Civic Republicanism, Public Lands, Agency Decisionmaking

JEL Classification: k23

Suggested Citation

Squillace, Mark Stephen, Meaningful Engagement in Public Lands Decision Making (2013). 59 Rocky Mt. Min. L. Inst. 21-1, 21-36 (2013), U of Colorado Law Legal Studies Research Paper No. 17-11, Available at SSRN: https://ssrn.com/abstract=3080638

Mark Stephen Squillace (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

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