HOW AGENCIES DEFEAT PUBLIC INITIATIVES

INSTITUTIONAL SELECTION

We have all heard of natural selection, a concept created by Charles Darwin in 1859. It is the primary way in which animals and plants adapt to their environments through sexual reproduction.

There is another form of selection having to do with cultural forces, a system of beliefs, assumptions, and values. Institutional selection imposes compliance among people in agencies and business. If one wants to rise within the institution a clear record of compliance to institutional values and beliefs is required. These selective factors are often unspoken, but those who want the institutional rewards are nonetheless very much aware of them.

Public agencies are influenced by having to be responsive to public concerns and involve the public in policy development. The problem for the agency is that the public can interfere with agency culture. They are constantly having to deal with public proposals and are obligated to hold public hearings on issues that can result in agency change. For this reason public agencies have developed a sophisticated resistance to outside interference. As one administrator once told me if you poke us too much in one direction, we build a callus.

The first level of resistance comes when the agency is confronted with a policy change over how it administers its system of assumptions, beliefs and values. The public initiatives arrive without invitation from outside the agency. As one director of the Oregon fish and wildlife department once said, “we can recover salmon if the public would just stay out of our business.” This candid burp was rather revealing for its honesty.

Public agencies are also burdened with a commission that can, when they feel forced, be responsive to public initiatives to change agency policy. The commission is always a wild card that the agency staff is constantly worried about, for it could mean a reflexive change in the why things are done, so they spend a lot of time tuning the commission up to support staff’s natural abhorrence to any change whatsoever. But change happens and the agency has developed a way to slow change down and defeat it, if given enough time.

The first thing that staff does with cooperation of its legal department is make sure that any policy change has no clauses of accountability embedded in it, something the public can use to pester the agency about non-compliance through the courts. So all policy changes are cleansed of deadlines, deliverables, numerical values or anything else that the public can use to threatened the status quo of agency operations.

Another useful tactic is to know your public. This is necessary because the agency is often called upon to assemble a public advisory group to help in the process of policy development. A useful precautionary tactic is to stack public advisory groups with people who are supportive of the agency status quo, but to appear non-partial they appoint one or at the most two people who are progressive in their views knowing they can be controlled or out voted. A novel refinement of this tactic is to invite people who are opposed to the agency altogether. They are useful in creating conflict with the feared change makers giving the agency the middle ground. For example, when deciding the Native Fish Conservation Policy, the ODFW invited the private property advocates to the table. These folks were opposed to fish protection because they believed private use of land was threatened. Including them on a committee to develop conservation plans for the protection of native species insured conflict. This was an unusually perceptive adjustment by staff to protect the agency status quo for it created a strong opposition to those seeking a strong conservation policy and at the same time gave the agency staff the middle ground. The staff ran shuttle diplomacy between the two opposing groups in the committee, telling each one what they wanted to hear, thus strengthening the conflict. This increased the agency capacity to maintain the status quo.

Another artful dodge is to maintain a policy in draft form for as long as possible so that it is not binding on the agency and no matter how hard the public might press them to implement the policy, the agency reminds them that it is only a draft.

These tactics are for the single purpose of protecting the agency from change, especially those threats generated by the public.

Once a policy development committee is seated, it is obvious to the agency staff that change is inevitable, so additional tactics are necessary to slow change down.

The second level of resistance is to not implement or make implementation impossibly slow so that those wanting change get busy on other things and public pressure is dissipated. Too often the public assumes that once a policy is adopted by the agency and becomes administrative law, that the agency will practice due diligence and implement that policy. The public spends a lot of time in policy development but attention wanes when it comes to carrying out the policy on the ground.

When the Oregon department of fish and wildlife adopted the Oregon Wild Fish Management Policy in 1978 and revised it several times later to remove legal handles that could prove inconvenient, it was discovered that the policy was not actually being applied agency wide. The policy was never popular and it was left up to staff to implement if they wanted to do so. The environmental advocates for this policy assumed that it was being applied across the state to provide protection for wild fish and were shocked to find out that it was an elective.

When the public was successful in convincing the commission to implement a slot regulation for Deschutes River trout fishery, one agency administrator complained that ODFW no longer managed the Deschutes, the public did. The slot regulation did away with bait and allowed a restricted kill of trout in number and size. This lead to a catch and release fishery, which is not favored by an agency that believes a kill fishery is the only way to sell licenses.

The following is provided to show just how strong resistance to institutional change can be. The Oregon Legislature passed a state law that said it is the obligation of the fish and wildlife department and commission to “prevent the serious depletion of indigenous (native) species.” Serious depletion was not defined so the agency had plenty of interpretation room to avoid compliance. The ODFW commission got into the act and said that the law also directed the agency to provide social benefits and concluded that conservation was balanced by the requirement to provide those benefits such as harvested fish. They developed a code for killing fish called “fishing opportunity.”

At the request of the public, the Oregon Attorney General’s office provided the ODFW with its assessment of this statute in 1997 and again in 2003. In those legal reviews the agency was told that its “overriding obligation is to prevent the serious depletion of indigenous species” and the agency is unable to provide social benefits unless this happened. Thus, the balancing argument of the ODFW commission was set aside, but their dedication for it was not.

Also at the public’s request, the ODFW director distributed the 1997 legal opinion from the AG’s to the staff so they would be fully informed about the law and their obligation to it. However, this law did not mesh well with the understood institutional mission of the agency by staff. One did not advance their careers by being an advocate for wild fish. One staff person who left ODFW told me he left because he did not like getting in trouble for following the rules.

In 2003 the AG’s office once again reminded the agency of its overriding obligation to protect native species from serious depletion as they sought to adopt the Native Fish Conservation Policy. In 2010 this state law still has no real traction within the agency in their day to day management. It was disturbing when a commissioner told me that he did not know how to deal with this responsibility.

It can be argued that when the state assigns a species as sensitive, which means it is precarious and vulnerable to extinction, or when a species is provided protection under the federal Endangered Species Act, that it is certainly seriously depleted. With regard to ESA-listed species, the states must get coverage from the National Marine Fisheries Service to run its hatchery and harvest programs. This would appear to be a serious check on any agency’s institutional mission, but it isn’t, for even though the federal agency requires the agency to justify its actions, it is not often different from what the agency would have done anyway. The only difference is the additional paper work.

In the state of Washington, the WDFW commission adopted a Wild Salmonid Policy. The director that led this adoption struggle and the staff person that drafted the policy lost their job soon after this policy was adopted. Since its adoption, the agency has quietly ignored it for it requires change in hatchery and harvest structures that have been in place a long time.

More recently, the WDFW commission adopted a Wild Steelhead Management Plan. This plan calls for Wild Steelhead Management Zones to be adopted. The public requested this and was successful. However, when asked why there has been little movement in setting up Wild Steelhead Management Zones, including the 20 that the public recommended, they are given a number of reasons.

The first artful dodge is that this policy is still in draft form so it is not binding on the agency. That reasoning inflames the public so other reasons had to be found. Since their co-managers, Native American tribes, did not sign this policy, the agency cannot implement it. That is a better excuse because someone else is to blame. When reminded that the WDFW has an obligation to secure 50% of the available harvest for its constituents in a shared resource with the tribes, there is ample room to provide for wild steelhead management zones. When the public advocates are willing to forgo harvest to increase the spawner abundance of steelhead in these WSMZs it is unreasonable to allow the tribes to harvest the forgone and so-called surplus from the recreational fishery. But because the agency does not establish a steelhead harvest management plan prior to the fishery starting, it claims there is no power to make changes to protect spawners and achieve spawner escapement goals in each river that is co-managed. So the agency, by not doing its job creates an excuse to harvest all the fish, including those needed for spawning. In order to do this and still appear to be managers of good faith, the recreational fishery is closed while the tribal fishery continues to fish. The conclusion is that wild steelhead are not getting the needed protection.

In lower Puget Sound hatchery fish harvest zones were created to maximize the harvest of hatchery coho. Wild coho spawner objectives by watershed have not been established because that would interfere with the harvest of hatchery fish. A recent petition to list wild coho in Puget Sound by the public is an attempt to correct this problem. By not protecting wild spawner abundance the WDFW is ignoring the best available science that has been in place for 72 years following the research of Willis Rich.

The conflict over conservation of native wild fish populations is created by the fish management agencies. As one retired ODFW biologist told me, wild fish and their habitat are irrelevant to the agency. They manage by a simple model of stocking hatchery fish and running kill fisheries. If one challenges that, one threatens the institution that is based on an industrial model of production and consumption where wild fish are considered a constraint on commodity production.

Fish and wildlife agencies have developed an elaborate resistance to changing their institutional structure of beliefs, assumptions and values. Even though they are public agencies they have created proven ways to blunt the effect of public reform efforts. They have rationalized state laws when they are in conflict with agency operations. They are able to do this because elected officials such as legislators, Congress, and governors, are not interested in resolving the problem.

The public makes its demands and it can have a modest effect on the institutional culture of fish management, but unless the public is fully engaged constantly, agencies find a way to step around and reduce the effect of the changes. The public cannot assume the fish management agency will follow through on its commitments, tell the truth or follow the law, and for that reason, the public needs to be organized so that it is applying pressure constantly year after year to make sure conservation policies are implemented.

Most public groups are themselves not organized to be vigilant protectors of Nature. For one thing policy development and accountability do not sell as well to foundations as do “shovel ready” short tem action projects that have a short life span. First the environmental groups need to make a commitment to follow through on policy development and implementation and find the donors that will help make that commitment a real force for conservation. The other important thing to do is work to elect public officials that actually care about how the state and the nation is protecting the environment and to have elected officials leverage the public’s concern for protecting nature.

Lacking that commitment the public groups are constantly fighting a rear-guard action plan and responding to crisis issues. This means that the agencies will not be reformed, and in the case of salmon, wild native species will not be recovered and there will be no end of populations being listed as endangered species and the rapid rate of extinction will not be addressed. Public agencies are organized to serve the narrow interests of their constituents rather than maintain the productivity and benefits of natural resources they are charged with protecting for the public good.

Recommended Reading:

Jim Lichatowich, Salmon Without Rivers

Lichatowich and Williams, Failure to incorporated science into fishery management (see the Native Fish Society web page for this article)

Rick Scarce, Fishy Business