From theory to policy to practice, at every step forward in the emergence of adaptive management something has been lost in translation. Melinda Harm Benson, Appropriate Management by Resource Management Agencies in the United States: Implications for Energy Development in the Inner West, 28 J. Florida Everglades); Lawrence Susskind et al., Collaborative Planning and Adaptive Management at Glen Canyon: A Cautionary Tale, 35 COLUM.
With no viable option in the foreseeable future, agencies cannot as a practical matter hope to practice a fully realized version of adaptive management theory. In this section of the article, we explore this gap and identify the tensions it presents for adaptive management in the courts.9 A. Indeed, the Ecological Society of America's comprehensive study of ecosystem management treats the use of adaptive management methods as a given.
The Army Corps of Engineers (Army Corps) and the Environmental Protection Agency (EPA)3 0-define adaptive management as. The Forest Service and DOI have led the way in adaptive management among federal land management agencies.
PRACTICE
Adaptive management is still the organizing principle for fish conservation in the Columbia Basin today. No single case has produced more than one decision that directly applied the law to adaptive management. The adaptive management litigation discussed in Part II.B below also reflects the benefits of larger-scale plans.
Four major adaptive management efforts account for about half of the federal litigation confronting the concept. The Northwest Forest Plan (NWFP) is one of the earliest large-scale adaptive management efforts,107 and one of the most successful in attracting court support for the concept of adaptive management. However, it provides a useful contrast with the NWFP in using adaptive management to modify a multi-forest management statute.
In upholding the adaptive management approach, the court rightly characterized the 2004 Framework as far-reaching. describes the problems with implementing adaptive management for portions of the Colorado River flowing downstream from Glen Canyon Dam). The alternative to adaptive management is to reduce the winter moose population in the region by almost twenty percent,1 77, but the path to achieving this is not clear in the plan.
Another example of postponing difficult decisions through adaptive management is the decision to establish grazing allotments in the Sawtooth National Forest. The trial reveals that it is these biological opinions that often prompt the agency's adaptive management.204. This gave rise to two sets of adaptive management plans (one for the smelt and one for the salmonids) that generated two different lawsuits.
The Court relied in part on the National Wildlife Federation to demonstrate that adaptive management can fulfill this necessary role. First, they probably contain the most thorough judicial discussion of the pros and cons of adaptive management to date. This comparison is particularly important because the odor conditioning protocol was not obscured at all.
The court found the adaptive management scheme too discretionary to overcome the need for an incidental take permit for the bats likely to be injured. An early case grappling with the role of adaptive management in meeting substantive legal standards is Oregon Natural Resources Council v.
LESSONS FOR THE NEXT GENERATION OF ADAPTIVE MANAGEMENT
To get the most out of a/m-lite, agencies should do their best to create plans that incorporate as many elements of adaptive management theory as possible, especially planning management actions as experiments, by promoting uncertainty reduction learning. Related to this lesson is that flexible management cannot substitute for evidence of reasonable certainty that substantive criteria will be met. The larger temporal and geographic scale that accounts for the agencies' greatest successes in adaptive management litigation supports this general argument of NEPA reformers.
Despite the fundamentally different knowledge and decision-making assumptions, flexible management is compatible with NEPA. Adaptive management is well-suited to the NEPA stage, which natural resource agencies already use adeptly. An additional incentive for an agency's use of flexible management in an EIS is that it may raise the threshold for requesting a supplemental EIS if new information becomes available.
Private regulated interests have expressed concerns about adaptive management's ability to continually add to the conditions imposed by resource development permits with no assurance of finality. The court's discussion of the adaptive management provisions emphasized the comprehensive and detailed nature of the monitoring and response protocols. DEP'T OF THE INTERIOR ET AL., DESIGNING MONITORING PROGRAMS IN AN ADAPTIVE MANAGEMENT CONTEXT FOR MULTISPECIES REGIONAL CONSERVATION PLANS available at http://www.dfg.ca .gov/habcon/nccp/publications.html.
Neither regulated industry safety nor public participation concerns have appeared in lawsuits brought against adaptive management in the courts to date, and no court has expressed concern on either aspect sua sponte. It is possible to set clearer standards to ensure that an agency claiming to use adaptive management does an adequate job. Congress should explicitly require adaptive management plans to (1) clearly articulate measurable goals, (2) identify testable hypotheses (or some other method of learning structured from conceptual models), and (3) state exactly what criteria should be applied in evaluating management experiments.
Providing future funding and requiring experimental elements of adaptive management to be more precisely defined would address the differences noted at the beginning of Part II.C. We would also master the a/m-lite practices that currently serve as open contingency planning, ensuring that all adaptive management plans take advantage of the scientific method to guide future iterations. Our review of the first generation of adaptive management litigation provides more than an analysis of the application of the law or judicial response.
It also opens a window into the actual practices that agencies have justified under the heading of adaptive management. The next round of adaptive management lawsuits will likely focus on how well the procedures developed in the sweeping plans have delivered on their promise.
