Law of the Land

"We were seeing [environmental] issue after issue come before us and create gridlock in the courts," says Sen. John McCain, R-Ariz., sponsor of the law that created the institute in 1998. "There had to be a better way to resolve these problems. [The institute] is a unique opportunity and a venue that were not available before."

By law, the institute seeks to resolve environmental disputes involving a federal agency or national interest, increase the appropriate use of environmental conflict resolution as a technique for mediating disputes and reduce the number of disputes by developing a consensus for solving problems during the early stages of environmental decision-making. Priority is given to disputes involving more than one federal agency, especially when there is a conflict between agencies, and to problems touching on highly tech- nical or scientific issues.

Since January 1999, the institute has handled more than 75 cases in 25 states. In some cases, the institute suggests the names of professional mediators or facilitators who can help the disputing parties reach agreement. It has compiled a national roster of more than 150 qualified mediators. The institute also has helped parties develop processes for reaching agreement. In still other cases, it helped bring stakeholders in a dispute together with government officials in ways that helped all sides recognize each other's viewpoints and legal constraints. In any case, getting disputing parties to the negotiating table is 80 percent of the institute's work, Emerson says.

In most cases, the institute gets involved in environmental disputes at the request of a government agency or a judge. One such case involved the controversial proposed closing of a storm-damaged road in the Humboldt-Toiyabe National Forest in northeastern Nevada. At issue was whether to repair Jarbidge Road and risk damaging water quality in the nearby creek and killing off an endangered species of fish. Also in dispute was whether the Forest Service or the county legally owned the road. Last year, when the issue became symbolic of Westerners' fears of an overbearing federal government, the federal district court in Nevada requested the institute's help. Institute staff researched the issues, negotiated the conditions for mediation, made all of the administrative arrangements and assisted the parties in selecting a mediator. In the end, the Forest Service and local residents agreed that the county owned the road and that the county would comply fully with environmental laws.

In another case, the institute became involved in a dispute between the Forest Service and the Tucson Rod and Gun Club over its operation of a target range in the Sabino Canyon National Recreation Area in Arizona. The club had operated the range for a half century, but new Forest Service rules required it to reduce noise, improve safety and clean up land contaminated by spent lead bullets. A mediator from the institute helped negotiate new procedures by which the club could get a special-use permit.

Emerson says that society now recognizes how complex natural systems are and that competing interests need to come together to protect them. That requires more careful and thoughtful approaches to reaching consensus-based solutions. Will such approaches cut the number of disputes reaching Congress and the courts? "It's too soon to tell," McCain says. But some government officials have already been won over. Conflict resolution represents "the cusp of some real innovative ways to resolve some of the thorniest environmental problems," says Robert Cunningham, the Forest Service's assistant director of planning.