wolf.

 

 



Negotiating to Win


by Jim Britell


Summary:   Practical advice and checklists on conducting negotiations including: where to sit; what and when to eat; your rights to documents; and how to cope with "stage fright". Pitfalls environmentalists face in such meetings.

In the Pacific Northwest, environmentalists are being asked more and more often to participate in planning timber sales that are worse and worse. Land management agencies are making concerted efforts to undercut opposition to unpopular logging plans by getting the public more involved in planning.

Agency managers have learned the value of the appearance of "public" approval and how easy it is to get. Timber-plagued politicians are learning, too, that negotiating groups are a media-friendly way to duck difficult decisions. Citizens' committees are regularly being enlisted to give benediction to the plans and schemes of land management agencies.

Environmentalists involved in these deliberations often have trouble figuring out their roles and how they can best influence ultimate outcomes. The only place David always wins against Goliath is in the Bible story. Too often, grassroots activists are emerging from advisory boards and work groups without even their slingshots intact.

It doesn't have to be so. A clearer understanding of the nature of these negotiations, and careful attention to principles and details, can cut the odds environmentalists face in negotiations with land management agencies and extractive industry.

The Myth of Planning

"Quodcunque ostendis mihi sic incredulus odi."
("To all that which thou provest me thus, I refuse to give credence, and hate.")

- Horace

In theory, forest planning is a rational sifting and evaluation of facts and observations, which produces possible courses of action that logically flow from the facts. In reality, most government planning is the systematic collection of evidence to justify predetermined conclusions. The important outcomes of most planning processes are decided before planning begins. Sometimes planners honestly do not know what the outcomes will be. You may be certain that their supervisors - the real decision-makers - do.

The paradigm of government planning is to prepare planning projections for the future, then to treat those projections as orders. The Forest Service's forest plans, with their lists of possible sales and volumes, are one example of such planning projections. Whether a particular sale is possible cannot legally be determined until agency staff complete an environmental analysis of that timber sale. But rather than cancel or modify poorly conceived timber sales, foresters will manipulate their biological models and computer programs to support cutting. When you object during the planning process you are told that your concerns are premature; when you object to the implementation you are told that your objections are too late.

Activists often work from the mistaken premise that environmental information is gathered to help the agency decide if it should proceed with a course of action. The information is gathered so the agency can proceed with what it intended to do all along. Agencies seek your input not to act on it, but to document for the file the fact that they made an honest attempt to obtain it. Under present interpretation, environmental protection laws (especially the National Environmental Policy Act, or NEPA) require agencies to diligently gather and consider facts. The laws do not force an agency to take action that accords with the facts it has collected.

From an agency's point of view, it is perfectly logical to aggressively seek your input, then just as aggressively ignore it. Planners must collect environmental information before they can legally offer timber sales - but if they acted on the information they collect, they would often have to abandon the sales. This causes a lot of confusion: at early stages in the process it may produce a genuine interest in soliciting input, and at a later stage a genuine attempt to ignore it. When the same agency people are involved it can be disconcerting, and lead to bad feelings.

(Mis)communications

It is essential to remember that, for the purposes of agency decision-making, only paper records exist. Meeting minutes are not just a record of what happened; they are what happened. Environmentalists in negotiations must monitor, build, and use these paper trails to lead the agency off its destructive course.

Agencies classify public reaction in two categories: "yes" and "maybe." Even vigorous objections will be classified as "maybe," and then likely passed up the line as something like "We may have some local opposition to some parts of the project, but we are working closely with our partners to insure cooperation." The mere fact that an environmentalist sits in a meeting and observes presentations by agency staffers will be recorded in agency records as concurrence. Nonresponse is as good as a positive and enthusiastic "yes." Silence is endorsement. Agencies also seem to treat objections as a wasting liability: if objectors are not heard from for sixty days or so, staff will often assume those objections to have been abandoned.

Of course, it is possible to press so hard, and have points so overwhelming, that the logic of protecting an area is inescapable. Even then, an agency will not take "no" for an answer: rather, it will shift from an institutional argument to a personal one. Environmentalists are often accused of upsetting agency personnel, of "destroying" long-standing productive relationships by "confrontational behavior."

Never give up the high ground. You have the right to be treated in a businesslike and professional manner. Do your best to avoid personalizing issues, but if people begin referring to you as a preservationist," find ways to put "devastationist" in the same sentence with that word. Avoid finger-pointing, but immediately rebut and counter-label without being aggressive. It is possible, and important, to be firm and yet friendly.

There are practical reasons for this. No one can listen to what you are saying if you are being insulting. Getting angry just makes you blind and ineffective. If you maintain their respect, adversaries on one issue may be allies on other issues. My Audubon Society chapter has several current projects where agency timber managers are our allies on non-timber issues-similarly, we have adversaries on land-use issues who are allies on fishing issues.

One part of holding the high ground is refusing to use the double speak that agencies have evolved to avoid acknowledging the reality of their actions. Agencies may think they own the land, but they certainly do not own the language. You have as much right to name things as they do. Always use correct words and object to phrases like "managed areas" when the proper expression is "deforested areas." This can provide a fertile field for humor.

 

Identification & Analysis of Alternatives

  • Ask to have a representative sit in on ID team meetings to monitor proceedings.
  • It is okay to meet with the ID team, but write your own letter summarizing the proceedings and agreements as you understand them. Submit this to the decision maker and request a written response if your version of events is not the same as the agency's. Ask for your minutes to be included in the record. Submit it yourself when the draft environmental-impact statement is opened for comments.
  • You have a right to the supporting analysis behind EIS's and assessments.
  • The various resource disciplines (ie., geology, hydrology, etc) often prepare elaborate studies to support planning conclusions. These are public records.
  • Insist that all documentation in process records be dated and signed by authors.
  • Avoid offering explicit counter-proposals to bad timber sales.

Who Really Makes The Decision?

Citizens work groups are, almost without exception, negotiating sessions of a peculiar type: they are "negotiations with agents with limited authority." Negotiations of this kind present the problem that if you make concessions they are gone forever, but any gains you make can be overturned by higher authorities. Sometimes past concessions must be renegotiated with new managers. I have seen plans that activists were talked into by one agency manager denounced by his successor as ridiculous.

Most meetings and "negotiations" merely furnish "talking points" for local staff to use at their discretion, when (and if) they meet with the real decision makers, who are seldom seen by local activists. Very often even the most serious concerns and evidence are not passed along to decision makers.

Some negotiations are outright shams. There are giveaways to these. Often you will be told that the project is "merely implementing the Forest Plan." Rangers will be very evasive if you ask about the possibility of adopting a "no change" alternative, no matter what the scoping shows. Shams will produce quotes like, "We know we shouldn't be going into that area and doing any logging but if we came up with a plan that said that, our bosses would never buy it. The plan calls for a volume in that area and we can't disregard it."

Be alert for "negotiations" which just run out the clock. By the time you realize your efforts are futile, you may have wasted the time you could have used to mobilize public opinion.

Decision, Appeals & Negotiations

  • Get a detailed written rationale for the rejection of your alternative.
  • Check "process records" carefully to insure that everything the agency said is there actually is. Look for material the agency failed to mention in its analysis and decision (e.g., "minority opinions" among its own personnel). If it is important, ask why the information was not divulged in the document.
  • Written documentation is all that counts in court. (Yours too.)
  • Anything that hints of obfuscation should be investigated.

A Captive Audience

"We are not always willing to extricate ourselves from a position whose absurdity has become clear to us."

- Thomas Nagel

When placed in a roomful of bureaucrats, most citizens, many environmentalists, and some activists will identify with the bureaucrats (the "Stockholm Hostage or Patty Hearst" syndrome). Most people find it very difficult to say "no" to a representative of the government, especially ones in uniform who say they're just following Congress's orders. Just as people sometimes quietly choke to death in restaurants rather than draw attention to themselves, environmentalists will sometimes smother their objections rather than disturb comity. Agencies take advantage of this fact.

Controlling interactive group processes, managing inter-organizational conflict, and using formal planning processes to further predeveloped policy agendas are subjects taught in graduate schools of labor law, business, and public administration. Managing formal interactions of people with conflicting goals is as much a discipline as biology or forestry. While activists have been studying ecology, our agency friends have been learning the art of manipulation by planning and negotiation.

Professional negotiators and mediators use coaching and videotaping to train agency managers in negotiation. In many cases, managers will retain professionals to advise them in their dealings with activists. These people - often called facilitators -are paid to help the agency prevail. Through processes too complex to relate here, managers or facilitators choreograph meetings so that peer-group pressure smothers substance. Even people who strongly disapprove of deforestation are often carried along into acquiescing to things they know are wrong.

Manipulation of citizens' committees begins with the selection of participants. Public processes are often used to bring pro-timber "publics" to the table early in the process, to give logging schemes the appearance of "middle ground." In promoting local boards, agencies usually claim to have included members from the "public," the industry and the environmental community. But in the rural North-west, asking local people if the timber industry should cut down trees is like asking a dog if his owner should get free steaks. Whether it's Georgia in 1850, West Virginia in 1940, or Oregon in 1990, extractive industry usually owns the locals. It is said that when the Grand Canyon dam was being considered, every elected politician at the town, county, state and federal level, and all the Chambers of Commerce in Utah and Arizona were for the dam. Where public forests are at stake, people in the pool of prominent citizens who would logically be selected for boards often have a direct financial interest in a high cut level because it creates such a flow of funds through the community.

When the Forest Service established timber advisory boards for Northwest forests in 1989, forest activists were seldom chosen as members because they were thought to be too partisan. However, local timber.company owners and others with a direct financial interest in board recommendations were selected. Since these boards often limited public testimony, activists could only sit helplessly by and watch while the government's hand.picked "environmental" representatives gave the store away. I know of instances where agency managers - and in one case the timber industry - contacted activists and asked them to rein in the timber-cutting enthusiasm of board members selected to represent the environmental community. This danger alone can induce activists to take part in processes they'd rather avoid, out of fear that if they don't do it, some "reasonable environmentalist" will.

If your group is excluded from a critical negotiation, and you can't stiffen the spine of the "environmental" negotiators, make sure all involved know that they do not represent your views. Like everything else, put it in writing, and get an acknowledgement of your complaint from the agency. Tell your story. Present your position through the media whenever you can.

 REMEMBER - When you deal with the government:

  • The paper says what the paper says.
  • The paper means what the paper says.
  • Unrecorded verbal agreements have a half-life of three months
  • No agreement is final until it is reduced to writing.
  • No agreement is too obvious to be written down,
  • Verbal agreements don't modify written documents.
  • Rangers' memories are not agreement repositories
  • Rangers and supervisors may have no knowledge of (and less interest in) verbal agreements made by their predecessors.
  • Agencies are willing to give activists an endless supply of elk-viewing areas, maps, rides in helicopters, new trails and schmoozing: anything and everything except trees.

So Why Negotiate?

Public input is probably best thought of as a kind of praying: few people would call it entirely useless.

Of course, negotiations are sometimes impossible to avoid. Because you often can't sue until you exhaust administrative remedies, you often can't stop a bad project without participating in the process - though you can't stop the project by participating, either, and you run the risk of being manipulated into agreeing to let it proceed.

At best, negotiations present opportunities to build administrative records that agencies and judges cannot ignore. Some negotiations make available internal agency documentation which would otherwise be very difficult to obtain, and which can become the basis for lawsuits.

Staying On Track

Negotiating has two components: influencing what things people think about, and influencing how they think about those things.

It is important to enter negotiations with the proper frame of mind. I generally try to assume that the deforestation agencies are made up of well-intentioned people who love the environment and abhor deforestation, but have succumbed to a form of group mental illness. I respect agency staff as individuals but view their collective activities as a form of highly organized juvenile delinquency.

Local managers are often fine people for whom we have a high regard, and they often believe that if they were not there making "least-worst" decisions, others would come and make really terrible decisions. They tell us that they are forced to enter roadless areas which they would prefer not to enter. Agency staff may feel forced to make environmentally bad decisions, but environmentalists are not obliged to become complicit in those decisions. In fact, we are obligated to resist them. As Andy Kerr of the Oregon Natural Resources Council is fond of saying, we are there to "stop them before they kill again."

Land management agencies have become addicted to deforestation. The only effective way to deal with an addict is "tough love," not "idiot compassion." Agency managers do need help, but they have to get it by organizing themselves through organizations like AFSEEE (Association of Forest Service Employees for Environmental Ethics.

Set the proper framework for negotiations by reading from any of a number of recent legal decisions, magazine articles and congressional hearings, which document what Judge William Dwyer called in a recent decision "a deliberate and systematic refusal by the Forest Service and the FWS to comply with the laws protecting wildlife."

You may be asked if you would like to substitute cutting in one place for cutting in another. Avoid offering explicit counterproposals to bad timber sales. We are not in the business of putting up timber sales. Activists have enough problems without internalizing the responsibility of meeting timber quotas which shouldn't be met in the first place. Never trade a place you know for one you don't. That's how the Glen Canyon Dam got built. Firmly decline any offers to help hold the chainsaws. You will be asked.

The most important thing to remember in attending meetings with agencies is that you may often find yourself alone in a sea of hostile people, who may believe, and even say, that you are an "enemy of the people" - particularly of working people and their jobs. The rural Northwest is possessed by a trickle-down theory which holds that if the big timber companies ever stop clear cutting it will mean the end of the American family as we know it. Try to have a support group you can talk to when times get tough. If you are in this business and are not receiving abuse, you probably aren't being very effective. Effective activists can cost timber corporations millions of dollars a year a piece.

A dangerous sign of effectiveness is conflicts between activists and the boards of directors or other officers of their group, following contacts by agency personnel with those officers. It is essential that negotiators and their boards foil any attempt to drive wedges. This point cannot be stressed too strongly. Officers of environmental organizations who have members in difficult negotiations with an agency must be very careful in their dealings with that agency, particularly since most of our organizations are open, and we may even have agency personnel on our boards of directors. Our Audubon chapter is actively involved in land use, wetlands and fishing issues; our Ancient Forest activism is probably the least controversial thing we do. Our (former) president, Ellen Warring, has told our board members that they should expect to receive personal criticism for the chapter's activities and that if they are uncomfortable with this they should resign.

Imaginary trees and birds may survive and flourish in the speculative habitats of computer models and fancy plans. Living things must survive in a real world. It's our job to see that they can. Remember that no matter what situation you find yourself in, trees and fish can't go to meetings and conferences to speak for themselves. They have selected you to go for them because they know you can do it.

Scoping Checklist   Negotiating Dos and Don'ts   "Stage Fright"

©1992 Jim Britell
All rights reserved.
May not be reproduced without permission.


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