Organizational and Legal Challenges

for Ecosystem Management (1)

 

Errol E. Meidinger (2)


 

Introduction

As a practical matter, ecosystem management is dependent on developing new organizational relationships for managing natural resources. While the reasons for this state of affairs cannot be fully elaborated here, many reflect the fact that our two most conventional forms of organization -- markets and hierarchies -- cannot achieve ecosystem management on their own.

The key inadequacies of markets are fairly obvious. First, many valuable functions and components of ecosystems are not effectively priced by markets. Thus "ecosystem services," such as storing and cycling essential nutrients, pollinating plants, maintaining hydrological cycles and atmospheric composition, and cleansing water and air either are unpriced by markets or are severely underpriced. There simply do not exist effective buyers whose bids reflect the full value of these ecosystem functions. Second, many beneficiaries of these ecosystem functions cannot participate in markets. These include both future generations of humans and all generations of nonhuman species. Therefore, ecosystem functions that benefit these groups are undervalued by markets. (3)

Because of the manifest limitations of markets as generators of ecosystem management, both advocates and opponents (e.g., Fitzsimmons 1994) of the goal sometimes conclude that stronger hierarchical organization, in the form of either comprehensive regulation or unified ownership, is implied. It appears, however, that hierarchical arrangements are also seriously inadequate for ecosystem management. The reasons are more complex, but can be grasped by considering several basic requirements of ecosystem management. Among other things, successful ecosystem institutions must

 coordinate ecological and social information gathering and analysis at a variety of levels (genetic through landscape to national and global) (e.g., Grumbine 1994);

 coordinate management activities on separately owned and multiply governed lands (e.g., Sample 1992);

 spot surprises in ecological and social processes (e.g., Lee 1993, Franklin 1994);

 support ongoing social dialogue to:

  build community understandings of eco-social issues,

  evaluate alternative policy possibilities, and

  choose courses of action (e.g., Francis 1993); and

 change course when knowledge or social values change (e.g., Walters 1986, Lee 1993).

In essence, ecosystem management requires organizational forms that can simultaneously coordinate scientific inquiry and democratic deliberation with existing institutions for managing natural resources and organizing communities. The inadequacies of traditional hierarchical institutions to this task are detailed in the next three sections.

 

Natural Resource Institutions

Management and control of natural resources is scattered among a variety of agents in society. At the grossest level (title holding) land is owned by many different kinds of actors -- individuals, families, publicly and privately held corporations, nonprofit corporations, Indian tribes, cities, counties, states, the federal government -- each operating with different incentives and under different rules. Most ecologically significant landscape units contain multiple landowners, often of different types. Less obvious given the oversimplified image of property ownership in current societal discourse, property owned by one party is also subject to interlinking property rights held by others. The most obvious of these rights are embodied in nuisance laws, which generally prohibit landowners from substantially and unreasonably interfering with the use and enjoyment of property by their neighbors or the public (e.g., Prosser and Keeton 1984). Thus, neighbors and the public have rights requiring that the property of others not be used in a way that substantially and unreasonably interferes with their interests. Although nuisance law as we know it today is largely a product of the common law courts, it has earlier roots both in community definitions of property rights (Meidinger 1993, Cappel 1995) and in formal statutes. An important general lesson is that property rights have never been absolute. Rather, they been constructed and enforced by social institutions to include reciprocal responsibilities to other property owners and the public. As natural resource uses and social knowledge have changed over time, so have those responsibilities.

A related body of servitude law, comprised of easements, real covenants, and equitable servitudes allows neighboring landowners to negotiate specific arrangements governing the uses of each other's property. Although servitude law is arcane and complex, with many odd limitations and hidden traps, in most states today neighbors can use servitude law to implement almost any substantive agreement about land use across ownership boundaries that they might wish to make. In addition, one of its most recent forms, the conservation easement, allows governmental and not-for-profit private organizations to negotiate voluntary arrangements with owners to limit their land uses in specified ways. This is a flexible mechanism because it permits locally variable arrangements that might allow for a certain amount of timber cutting or other natural resource exploitation according to terms specified in the easement agreement.

With the industrial revolution's creation of many new ways in which particular land uses can injure the interests of others, environmental and natural resource problems came to be seen as too complicated and changeable to be left to the care of generalist, nonexpert judges. Accordingly, successive bodies of substantive statutes and administrative regulations were promulgated to control environmental and natural resource uses. Enforcement, as well as elaboration and revision of these laws, was often left to administrative agencies, which were seen as the most sensible mechanism for handling complex, rapidly changing problems. These laws and agencies operated at a variety of levels -- local, state, and federal -- often in a cumulative fashion. Thus, air pollution regulation was handled entirely at the local level in the late 19th century, then also at the state level starting around World War II, and finally also at the federal level starting in the early 1970s. Today, important air pollution regulation functions continue to be carried out by all three levels of government (Krier and Ursin 1977). Much the same can be said about many other types of problems, such as water pollution and wildlife protection, although there are many local variations. Notably, the direct regulation of forest practices has not been federalized, despite efforts to do so in the middle of this century. State regulation of forest practices varies considerably. (4) However, many of the types of regulation noted above are directly applicable to forest management, thus creating a complex and open- ended set of institutional rules governing forestry.

In sum, the legal context of forest management is multilayered and complex, beginning with a variety of types of owners (private, corporate, and governmental, all having different incentives), proceeding to include a variety of interlinking rights and duties among them, and then including many types of regulation (water, air, land use, wildlife) implemented by a variety of government bodies. Legal definitions of rights and responsibilities have always been somewhat fluid and dynamic, and may be growing increasingly so (Geisler and Kittel 1994). If ecosystem management is to be achieved, it must be done in this complex institutional context.

 

A Law of Ecosystem Management?

One way of attempting to institutionalize ecosystem management would be simply to add an overarching layer of law to the received system -- essentially saying "thou shalt practice ecosystem management" applicable to all types of owners and governments. However, ecosystem management as a principle remains too general to translate into an enforceable law. One could seek to distill a rule from Grumbine (1994):

Thou shalt integrate scientific knowledge of ecological relationships within a complex sociopolitical and values framework toward the general goal of protecting native ecosystem integrity over the long term.

Another could come from Moote et al. (1994):

Thou shalt follow a management philosophy which focuses on desired states, rather than system outputs, and which recognizes the need to protect or restore critical ecological components.

Still another could come from the current chief of the U.S. Forest Service:

Thou shalt look at things at very large scale, and across boundaries, and thereby maintain the health of the system, defined as the ability to recover from insult time after time after time. Preservation shall be the primary goal. Do not kill the goose that lays the golden eggs. Consider your individual actions in relation to the overall context. (5)

In no case can the core principles of ecosystem management be translated into formal rules defining acceptable and unacceptable conduct. Rather, they all clearly involve considerable amounts of discretion, negotiation, deliberation, and learning. Accordingly, the challenge of ecosystem management is not in the first instance a legal one. Rather, it is an institutional one: How well is our society organized to facilitate the development of ecosystem management? Legal issues are important to the discussion, however, because institutions and organizations are partially structured by law. Because laws are often constructed as constraints on human actors and consequently on their ability to create new forms of social organization, legal requirements can act as brakes on ecosystem management. It is important to note, however, that laws also empower actors (individuals, corporations, governments) to conduct themselves in particular ways, and therefore can also be enablers for ecosystem management.

In analyzing the role of law in ecosystem management, it is not feasible simply to survey all the laws in existence and offer conclusions about whether they obstruct or foster ecosystem management. Not only are there too many laws to be analytically tractable (many having little practical effect), but their relevance is not apparent without prior information on what kinds of social organizations are useful for achieving ecosystem management. Thus, since ecosystem management is in many ways an organizational problem, it will be helpful to discuss alternative organizational structures for ecosystem management before returning to legal issues.

 

Models of Organization

Although organizations in this society are variable and exhibit enormous particularistic variation, they also show broad patterns of similarity (Morgan 1989). These similarities reflect and reinforce widely held normative assumptions and expectations about the appropriate structure of organizations (Dobbin 1994, Meidinger 1987). The laws structuring organizations generally reflect and reinforce the same norms. Both the laws and ecosystem management must therefore be understood in relationship to basic forms of social organization.

In the late 19th century, the model of organization that dominated the industrializing world also dominated the emerging natural resource management organizations -- both private and public. The classical bureaucracy portrayed in Model 1 and trenchantly analyzed by Max Weber (1978) had certain hallmarks: (1) a hierarchical system of supervisor-subordinate control, (2) departments with defined, compartmentalized jurisdictions, and (3) detailed rules governing the roles and powers of officials, operating procedures, and substantive decisions. The bureaucratic organization also (4) sought consistency across domains and (5) was staffed by appointed, salaried officials progressing through fixed career lines. (6) Policies were set by a head accountable either to commercial actors or a sovereign government. (7) Operational (lower level) staff were responsible for configuring the materials they worked with (raw materials, information, people) into desired outputs. (8) Clear lines were drawn between the organization and its environment, and (9) staff members were required to pass frequent tests of loyalty to the organization.



As the complexity and interrelatedness of problems faced by bureaucratic organizations grew and became better understood, bureaucracies typically made several adjustments. First they created senior executive groups made up of the chief executive and directors of principal departments (Model 1a) to deal with new problems that seemed to require new responses. The executive groups soon began meeting on a regular basis as exemplified by the regular chief and staff meetings of the U.S. Forest Service. Non-members attending to contribute information or advice accrued an important symbol of status in the organization. Individual departments continued to exercise distinctive authority in the daily operations of the organization, however.

 

As it became apparent that senior executive groups could not handle all the problems raising interdepartmental or novel issues, bureaucratic organizations began establishing project teams and task forces as shown in Model 1b. Typically, however, task forces were shorter lived and weaker than departments; team members remained accountable to their own department heads rather than to their teams. Promotions were controlled by department heads, and staffers were expected to represent the views of their departments. Especially difficult or important problems were still elevated to the senior executive group.

 

 

Models 1, 1a, and 1b characterized the formal structures of most resource management organizations in North America, at least through the middle of this century, and in many cases they still do. Their shared hierarchical structure and system of accountability became a taken-for-granted feature of the modern organizational landscape, a form that people expected and relied upon at the same time that they decried its evident shortcomings. Various bodies of law -- administrative, corporate, proprietary, constitutional, etc. -- assumed, reinforced, and gradually rigidified hierarchical bureaucratic formations.

At the same time, significant pressures for change took shape. These are often portrayed as efficiency pressures. Changes were needed, according to functional theories, because bureaucratic organizations were incapable of handling complex problems in a rapidly changing, turbulent world. While this portrayal seems accurate in many respects, it misses several important forces. First, many people found working in hierarchical bureaucracies demeaning and frustrating and began to reduce their levels of commitment, exacerbating problems of organizational productivity and adaptability. Second, the portrayal missed the complex political life of organizations, which has always involved struggles and internal divisions over the substance of organizational commitments. Third, and most important, organizations were increasingly expected to be politically responsive at both top and bottom. As the inability of chief executives and middle managers to adequately calibrate policies to changing local conditions and coalitions became increasingly apparent, bureaucracies were unable to legitimate their policies based on hierarchical directives alone. Public bureaucracies could no longer simply say "we work for Congress and the President." The fact that operational employees make policy became fairly widely understood (e.g., Lipsky 1980) and "public participation" requirements were imposed at both upper and lower organizational levels (e.g., Meidinger 1992). If participation were to mean anything, therefore, policy would have to flow up the organization as well as down.

Meanwhile, the ideal of a vertically stratified, horizontally compartmentalized organization itself began to give way. Models 2 and 3 depict post-classical conceptions aimed at integrating organizational tasks and functions. The rather technocratic "matrix organizations" depicted in Model 2 seek to give equal priority to functional departments (e.g., timber, fish, wildlife, administration, in the forestry context) in task units (Baber 1983). Each cell in the matrix thus represents a team combining different functional departments with joint responsibility for a particular task or product. Teams might be relatively permanent or very short-term. Team members are expected to maintain a dual focus on function and end-product, in the process mediating conflicting goals, processing high volumes of information, and producing intelligent responses to environmental changes, as well as producing good products. Developed by the Defense Department and the National Aeronautics and Space Administration in the 1950s and 1960s, the matrix model soon became a darling of management teachers and consultants (e.g., Chadwin 1983). Although its central strategy was to maintain functional departments while organizing work in interdepartmental task units, the matrix model was also credited with an improved capacity to integrate diverse perspectives from outside the organization. As is evident from the depiction in Model 2, however, this was not done by formally institutionalizing relationships to external interests, but rather by relying on the diverse perspectives and commitments of interdisciplinary teams. It can be argued that the "systematic, interdisciplinary" environmental impact process required by the National Environmental Policy Act and the interdisciplinary planning processes required by several federal land management statutes in effect mandated the partial "matrixing" of several federal agencies, but it is not clear how much transformation of their traditional hierarchies has actually occurred.

 

Expanding on the team concept of matrix models, but loosening organizational boundaries and hierarchical accountability, the project-based organization depicted in Model 3 assigns responsibility for core operational activities, much policy making, and innovation to project teams, which are regularly reconfigured when projects and environmental conditions change. Functional departments play primarily a support role, although teams are still composed with functional requirements in mind. One of the most important features of this model is that it begins to look as much like a network as like a hierarchy. Several very important implications flow from this fact. First, given the reduced importance of rules and supervisory control, Model 3-type organizations must devote more effort to creating shared understandings of organizational identity and mission. Second, the lack of a strong hierarchy means that coordination between teams must be achieved through regular and informal mutual adjustment. Since top management is lean, it cannot possibly make every judgment call that might arise in cases of disagreement. Third, as a direct consequence of the first two characteristics, good information is crucial, and relationships are designed more around information exchange than around supervision and control. Conversely, the structure of information exchange becomes a kind of control in itself, but perhaps a more fluid one than traditional hierarchy and rules.

With its linked but decentralized team organization, flexible task focus, and reliance on information flows and mutual adjustment, Model 3 might be seen as a good one for ecosystem management. This could indeed turn out to be the case. But for this model to work, an important question must be addressed: What will be the significance of organizational boundaries? All the models thus far discussed treat resource management organizations as self-contained and distinct from their environments. At the same time, we know that most organizations are continually involved in complex forms of interchange and mutual dependence with actors, organizations, and resources in their environments. Indeed, part of the early success of the U.S. Forest Service was attributed to the ability of its field personnel to establish effective relationships with local community members (e.g., Kaufman 1960). However, the primary duty of the forest ranger was to adapt general forest service policies to local conditions and to gain local acquiescence to agency policies -- not to empower local communities in national policy making. Primary loyalty to the agency was stressed in a variety of organizational practices, most notably, rotation of management personnel through a variety of locales.

 

We also know that government agencies are required to provide for public participation in all levels of politically significant decision making. We know further that government resources are likely to be inadequate to comprehend and manage most landscape level ecosystems, thereby making cooperation with and among nongovernmental organizations essential. One plausible response is to look beyond the organizational membrane and to implement (or perhaps simply pay attention to) an extended structure like that in Model 3a. This model retains some hierarchical control while allowing for variable task organization, knowledge sharing, efficient resource use, and interorganizational coordination. Recent "science assessment" efforts, such as the Interior Columbia Basin Ecosystem Management Project and the South Appalachian Ecosystem Assessment, can be seen as tentative efforts to develop this form of organization. Practical institutional questions confronting the implementation of Model 3a: (1) What conditions encourage effective collaboration? and (2) Will our resource management and administrative laws facilitate this kind of organization?










A form with some of the advantages of project organization, but which allows a more fluid structure is depicted by Model 4, the loosely coupled network. Best exemplified by organizations in the fashion industry, in which firms form alliances to develop product lines with the strategic leadership and support of a small core of staff, this model relies on relatively few employees and extensive subcontracting. All that really holds it together is a mutual interest in a shared enterprise -- a commitment to producing a successful outcome and possibly a partial vision of how that can be done. That mutual interest can of course change quickly, and consequently specific organizational relations are fluid.

 

As an empirical matter, this model seems to bear the closest general resemblance to many landscape-level ecosystem management efforts that have been attempted to date (e.g., Lynch 1995a, 1995b; Antypas and Vanderwood 1995a and 1995b; Vanderwood 1995; see also the case examples in Wondolleck and Yaffee 1994). This may inherently be the most likely model because of the fragmented structure of ownership and governmental authority in most ecologically significant watersheds. The difficult question is whether shared interests in landscapes will be sufficient to hold such efforts together and translate them into coordinated behavior over time. In business contexts, the profit motive plays an important though not exclusive role in holding together loosely coupled networks. In the ecosystem context, incentives supporting loosely coupled networks will ordinarily be more diffuse, but will probably include a healthy dose of economic self-interest, often created in part by the perceived risk of more intrusive regulation in the absence of self-generated coordinating mechanisms.

If shared interests in place develop and deepen over time, it seems plausible that loosely coupled ecosystem management networks could become more stable and interconnected. They might thus metamorphose toward either

1) Model 3a extended project organizations in socially "thin" ecosystems (i.e., places organized through relatively few extant organizations), or

2) more complicated organizational forms, often labeled communities, in socially dense environments (e.g., House 1993).

Conversely, the argument thus far suggests that if stronger forms of ecosystem organizations do not evolve, ecosystem management will not be institutionally feasible.

Models of Politics

There is a suggestive parallel between Model 4 and what empirical researchers have been learning about the general nature of policy making organizations in the American political system. Building on the work of Heclo (1978) and others, scholars like Sabatier and Jenkins-Smith (1993) argue that American public policy is made in "policy subsystems." Whether called by this name, or "implementation structures" (Hjern and Porter 1981), or "policy communities" (Kingdon 1984, Shannon 1991), or "regulatory communities" (Meidinger 1987), or "issue networks" (Heclo 1978, Michaels 1992), there is widespread agreement that these groupings consist of a variety of public and private actors, typically including federal and state agencies, business firms and associations, public interest groups, journalists, scholars, and others seriously interested in a given policy arena. Sabatier and Jenkins-Smith maintain that policy subsystems are ordinarily divided into two contending advocacy coalitions organized around competing core beliefs. They suggest that advocacy coalitions typify most policy arenas, and can be more important in policy formation than formal authorities such as legislatures and chief executives, which often seem to serve primarily to ratify the arrangements worked out in policy subsystems.

Model 5 is a simple representation of modern political organization as portrayed by Sabatier and Jenkins-Smith. While retaining a weakened form of group clustering from Model 4, it also allows for a variety of more diffuse relationships across subgroups. The actor labeled "B" represents a "policy broker," who Sabatier and Jenkins-Smith say functions to reduce intense conflict between the advocacy coalitions separated by the diagonal line. Interestingly, research by Heinz et al. (1993) indicates that in some national policy domains policy brokers do not exist. Heinz and coauthors also argue that patterns of communication are much more complex than traditionally imagined, readily crossing interest group lines and circumventing would-be policy brokers. A graphical portrayal of their model, accordingly, would be Model 5 minus the policy broker and fault line.

The discussion has moved from general to political models of organization for two reasons. First, most natural resource organizations in practice are as much political as they are purely economic or managerial. Second, politics, like markets and hierarchies, must be understood as a form of human organization, and not just as a collection of processes or rules. Because politics is often hived off from other sectors of social life in American discourse, it is important to sketch some possible connections between the alternative organizational models discussed thus far and the two dominant models of American politics, pluralism and civic republicanism.

Pluralism. By far the best-known model of American politics is often called interest group liberalism or simply pluralism (e.g., Dahl 1967; Truman 1959). Its core assumption is that interest groups with conflicting policy desires compete to obtain preferred outcomes in political forums, largely by offering or threatening to revoke valuable political resources like votes and campaign funding for political officials. Pluralist models assume that political interests are given (exogenous) and are not a product of political processes. They also assume that the fundamental function of politics is to distribute valuable rights, privileges, or resources among competing claimants, and not to develop shared social values or fair principles for distribution.

Pluralist models of politics are readily and often linked with bureaucratic models of organization. In these linkages, pluralist negotiation occurs at the level of the legislature and the executive -- the H Models 1 through 1b. The role of the bureaucracy is then to implement the deal or bargain made in the political process. Many political and legal theorists focus on how to make bureaucracies more precisely implement the bargains cut in the political arena and memorialized as statutes or rules (e.g., Lowi 1969). As the above discussion of organizational models suggests, however, traditional bureaucracies may be poorly adapted to the kind of horizontal information sharing, normative dialogue, and policy adaptability implied by ecosystem management. To achieve ecosystem management, ownership organizations need to do much more than manage their own lands. They need to coordinate management with their neighbors, share information, develop shared understandings, and adjust readily to unforeseen circumstances. The post-bureaucratic models discussed above appear to emphasize these capacities. How important they will be to ecosystem management depends somewhat on the capacity of traditional political subsystems to process the detailed information and very different problems posed by highly variable landscapes. As the work of modern political researchers like Sabatier and Heinz suggests, many policy subsystems already seem to be organized in some form of loosely coupled network. What may occur with ecosystem management, accordingly, is the development of many more localized policy subsystems, and a consequent shift of policy- making activity toward the local level.

 

Civic Republicanism. Although they are not necessarily tied to it, the post-bureaucratic models discussed above suggest parallels with America's main contending school of political theory, civic republicanism, which has enjoyed a revival in recent years (e.g., Pocock 1985, Stanley 1983, Barber 1984, Boyte 1987, Michaelman 1988). Civic republicanism is harder to characterize than the more mechanistic models of pluralism. One of its key premises is that the purpose of politics is not simply to divide spoils according to the pre-given preferences and power of interest groups, but rather to develop shared understandings of the common good through public deliberation. Because it eschews the political subservience of some citizens to others, civic republicanism resists hierarchical models of politics, implies a high degree of equality, and often has a flavor of localism. Because of its deliberative purpose, civic republicanism requires organizational structures allowing for extensive communication of knowledge and values among citizens as they solve the problems of their collective life.

While it would be premature to link the fate of ecosystem management with that of civic republicanism, the parallels should be kept in mind, since the civic republican tradition has deep roots in American politics and could turn out to be an important supporting force that will be likely ignored by bureaucratic officials seeking to achieve ecosystem management.

 

Legal Challenges

Although it is not possible to define a single law of ecosystem management, it is important to consider which areas of law are likely to affect its prospects most, particularly if they will inhibit it. At this stage of experience, several areas should be discussed.

 

Public Land Management Laws. Because federal land management agencies have played a large role in articulating the ideal of ecosystem management, there has been considerable analysis of their ability to pursue it as a matter of statutory authority. That analysis need not be rehashed here. In essence, it seems clear that the mandates of the federal land management agencies give them sufficient authority to pursue ecosystem management on their lands, but probably do not mandate it (Keiter 1994, Perry 1994); see box titled, Federal Laws Authorizing Ecosystem-Oriented Objectives)..

In the widely publicized FEMAT (Forest Ecosystem Management and Assessment Team) case involving the legality of the joint BLM-Forest Service plan produced following the President's Timber Conference in the spring of 1993, Federal District Judge Dwyer concluded that based on the confluence of the land management laws, the National Environmental Policy Act, and the Endangered Species Act and "[g]iven the current condition of the forests, there is no way the agencies could comply with the environmental laws without planning on an ecosystem basis." Seattle Audubon Society v. Lyons, W.D.Wash. (1994), 871 F.Supp. 1291,1311). This is an important dictum, but should not be read as an authoritative statement that the federal land management laws in general require ecosystem management, since it is closely tied to the factual situation in the forests of the Pacific Northwest.

The federal land management agencies also have limited authority to involve themselves with management activities on private lands. (See box titled, Federal Laws Authorizing Cooperation with Private Land Owners and Other Governments). The ability of state and local land management agencies to pursue ecosystem management has not been well researched and is currently subject to some contention. Relevant laws and policies vary enormously among states. The primary questions are to what degree state agencies must concentrate on maximizing revenues as opposed to providing for other forest values and to what degree maximizing revenues would preclude ecosystem management. Based on the broad latitude generally given to public agencies, as well as the argument that ecosystem management will enhance long-term productivity, it seems implausible to read revenue-generating responsibilities generally as precluding ecologically sensitive management. An important but weak-reasoned Washington State Supreme Court decision, however, states in dictum that the state land management agency must act like a private trustee solely in the interest of the beneficiary of the land, which the court construed to be public school funds. County of Skamania v. State, 102 Wash.2d 127, 134, 685 P.2d 576, 580 (1984)).


FEDERAL LAWS AUTHORIZING ECOSYSTEM-ORIENTED OBJECTIVES

a. The Multiple Use-Sustained-Yield Act gives the Secretary of Agriculture broad discretion to manage the National Forests for multiple use and sustained yield, and defines multiple use to include "harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or greatest unit output" (16 U.S.C. Section 531(a)).

b. The National Forest Management Act frames the Forest Service land planning process which is to be used to pursue multiple use goals. NFMA also contains authority to "provide for diversity of plant and animal communities ... in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan" (16 U.S.C. Section 1604(g)(3)(B)). The forest planning process is to include comprehensive resource inventories (Section 1604(g)(1)), "a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic and other sciences" (16 U.S.C. Section 1604(b)), coordination with state and local governments and other federal agencies (16 U.S.C. Section 1604(a)), public participation (Section 1604(d)), and continuous monitoring and evaluation (Section 1604(g)(3).

c. The Federal Land Policy and Management Act gives the Secretary of Interior (and by delegation the Director of the Bureau of Land Management) broad authority to manage BLM lands "on the basis of multiple use and sustained yield" (43 U.S.C. Section 1701(a)(7)), "in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values," and "giv[ing] priority to the designation and protection of areas of critical environmental concern (Section 1712(b)(3). The long definition of "multiple use" includes "harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output" (43 U.S.C. Section 1702(c)). These goals are to be accomplished through a land use planning process involving resource inventories (43 U.S.C. Section 1711), "a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences," (Section 1712(c)(2), coordination with other federal agency, tribal , and state planning processes (Section 1712(c)(9), and public involvement (Section 1712(f).

d. Although applicable to all agencies, The Endangered Species Act, has an especially direct bearing on federal land management agencies because many of their lands contain critical habitat for endangered or threatened species. Section 7 requires that each agency "insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered .. or threatened species or result in the destruction or adverse modification of [critical] habitat of such species" and also requires that agencies consult with the Secretary of Interior before taking actions likely to affect such species (16 U.S.C. Section 1536)).

e. The National Environmental Policy Act requires that before taking any "major federal actions significantly affecting the human environment" all federal agencies produce detailed, interdisciplinary analyses (EISs) of the environmental impacts of proposed actions, alternatives to them, relationships to long-term productivity, and irreversible and irretrievable commitments of resources. They must also consult with other interested federal agencies. (42 U.S.C. Section 4332, generally known as "section 102." As agency practice and litigation have developed, agencies often find themselves producing EISs at multiple levels from specific projects to regional plans, and have a difficult time coordinating such efforts.


FEDERAL LAWS AUTHORIZING COOPERATION WITH PRIVATE LAND OWNERS AND OTHER GOVERNMENTS

The Forest Service has authority to "protect trees and forests ... [on National Forest lands] and, in cooperation with others, on other lands in the United States from natural and man-made causes" (16 U.S.C. Section 2104(a)) and to provide technical assistance to private non-industrial land owners (Section 2103(a)). Under the Stewardship Incentive Program, the Forest Service can use cost-sharing to "encourage long-term stewardship of non-industrial private forestlands" for goals including forest wetland restoration, native vegetation and fish and wildlife habitat maintenance, and sustainable forest management generally (16 U.S.C. Sections 2103b(a) and 2103(b)(4)(B). The related Forest Legacy Program allows the Forest Service to protect non-federal forest land from conversion to non-forest uses via conservation easements and other undefined "mechanisms" (16 U.S.C. Section 2103(a). On BLM lands, where neighboring landowners consent, or where public and private lands are intermingled, the agency has authority to develop grazing allotment management plans taking the management of private lands into account (43 U.S.C. Section 1752(f)). The agency's mandate to coordinate with state, local and tribal planning processes also creates capacity to link with private land management through the planning mechanisms of other governments.

The agency with the longest history of providing technical and financial assistance to private and state landowners is the Natural Resources Conservation Service (formerly known as the Soil Conservation Service), which has authority under various acts to assist with water quality improvement, water supply, wildlife habitat, soils management, erosion control, pasture, range and crop management, flood control, and local land use planning law, among other things. It also can undertake natural resource inventories, wetland identification and protection, soil survey investigations, and conservation demonstration projects. Soil Conservation and Domestic Allotment Act (16 U.S.C. Section 590g, et seq.), Food Security Act (16 U.S.C. Section 3811 et seq.), Watershed Protection and Flood Prevention Act (P.L. 83-566)


Many of the barriers to ecosystem management in these statutes may be procedural rather than substantive. Agency planning horizons are relatively long (typically 10 to 15 years). The potential changes to plans implied by the experimental and adaptive aspects of ecosystem management will often have to go through a complicated plan amendment process, which will itself be subject to internal appeals and judicial review by affected parties relying on the plans. Moreover, since ecosystem management is just one of many allowable agency purposes, which sometimes conflict, an argument can be made that ecosystem management should be made mandatory for federal land management. However, the abstractness of the concept limits the precision with which such a mandate could be defined. In any case, larger institutional challenges to ecosystem management seem to reside in the general legal frameworks structuring federal agency interactions with the public, corporate competition, and definitions of property rights.

Administrative Law.

General Provisions. In addition to the agency-specific requirements in the land management statutes, government agencies are subject to generic laws governing how they operate. After a generation of increasing agency duties to facilitate public participation, general administrative law seems to be moving toward giving agencies more autonomy. Thus the Supreme Court has ruled in recent years that judges could not require agency procedures beyond those clearly required in authorizing statutes (Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519 (1978) that agency interpretations of the statutes they administer should receive deference unless Congress explicitly addressed the question at issue (Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)), that members of the public have no standing to challenge agency decisions in court unless they directly use the land at issue, and that federal policies cannot be challenged until they are actually applied to particular pieces of land (Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)). Since they preserve flexibility for land management agencies, these decisions could be portrayed as supportive of ecosystem management. The main question is how well the agencies will provide for public dialogue and deliberation given the flexibility allowed them by the courts. Their traditional track record is not very good. Even if the agencies seek to improve public participation, however, Congress and state legislatures may be on the verge of greatly increasing their procedural and analytic responsibilities by requiring extensive risk analysis to support any regulations significantly affecting non-governmental interests.

The Federal Advisory Committee Act. While most administrative law focuses on either the decision-making procedures or the substantive duties of agencies, the Federal Advisory Committee Act (FACA) is virtually unique in focusing on continuing relationships between agencies and nongovernmental parties. Given the importance to ecosystem management of ongoing intergovernmental and interownership relationships, this small statute may have quite a large effect. Enacted October 6, 1972, by P.L. 92-463, 86 Stat. 770, FACA requires that whenever the federal government "establishes or utilizes" an advisory committee (broadly defined to include most types of groups) "in the interest of obtaining advice or recommendations" it must conform to a variety of requirements, including the following:

1. Chartering

a. A formal charter by the president or agency head must exist before any duties are performed.

b. The charter must detail committee purpose, duties, cost, usefulness and membership.

c. The committee expires automatically after two years unless rechartered.

2. Membership: must be "fairly balanced in terms of the points of view represented and the functions to be performed" (Because this requirement is rather vague, courts have been very hesitant to override agency definitions of balance. Mainly, it requires that agencies explain why they think a committee is balanced.)

3. Open Meetings.

a. Advance notice of each meeting must appear in the Federal Register.

b. Meetings must be open to the public (with narrowly limited exceptions).

c. The public must be permitted to present views orally or in writing.

d. There must be public review of all documents used by the committee (again subject to narrow exceptions).

e. Detailed minutes must be kept and made available to the public.

4. Federal Control: Federal employees must:

a. call all meetings,

b. approve all meeting agendas, and

c. chair all meetings.

Although FACA's purposes of opening up government and providing a level playing field for all parties are understandable and laudable, the statute has several unfortunate side effects for ecosystem management:

1. Uncertainty. The statutory language referring to all committees "established or utilized ...in the interest of obtaining advice or recommendations" is extremely broad and could potentially cover every group from which the government receives policy advice. Implementing regulations, promulgated by the General Services Administration in 1987, attempted to focus the statute on groups adopted "as a preferred source of advice or recommendations" or from which the government seeks "consensus advice and recommendations." (41 C.F.R. Sec. 101-6.1003, 101-6.1004.) Under this interpretation, most ecosystem management groups would arguably still be covered by the act. In 1989, the U. S. Supreme Court further narrowed the reach of FACA by reading "utilized" as a minor modifier of "established;" its purpose was "simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations .. for public agencies as well as by such agencies themselves." (Public Citizen v. Department of Justice, 491 U.S. 440, 462 (1989)). Based on this reading, the Court found a standing committee of the American Bar Association that advised the president on the qualifications of potential federal judges to be outside the reach of FACA. However, an important element of the Court's opinion was the fact that a broader interpretation might have put FACA in conflict with the president's constitutional power to nominate federal judges (and implicitly to obtain advice in doing so from whomever he wished).

Because the constitutional issue was an element of the Public Citizen decision, it remains possible -- although perhaps not likely -- that courts could apply a more expansive definition of "utilized" to agency dealings with independently formed ecosystem management groups. Agency ecosystem management activity does not have constitutional status, in other words, courts could conceivably require FACA procedures whenever an agency deals with a free-standing group. Perhaps partly for this reason, federal land management agencies decided to stop participating in the independently formed Applegate Partnership in southwestern Oregon after losing an important but factually quite different FACA suit (Lynch, 1995a). The case, Northwest Forest Resource Council v. Espy, 846 F.Supp. 1009 (1994) involved the legality of the Federal Ecosystem Management Assessment Team formed as a result of President Clinton's 1993 Pacific Northwest Forest Conference. That team was clearly established by the federal government and, since it included members who were not full-time federal employees, was held subject to FACA. That decision to withdraw from the Applegate Partnership probably reflected an excess of caution, but nonetheless exemplifies one of the costs of the uncertainty of FACA's coverage. This uncertainty, of course, may also provide a handy tool for those who do not wish to see federal agencies create new ecosystem partnerships for other reasons.

In any event, FACA applies to every committee "established" by the federal government that includes individuals who are not federal, state, tribal, or local officials. If federal agencies wish to foster ecosystem management groups in places where they have not spontaneously emerged, they probably must conform to FACA's requirements. Doing so will have several problematic consequences.

 

2. Federal Agency Control and Distance. FACA requires that the federal government define the purpose, duties, and membership of (as well as manage and largely control) any advisory committee. Although this may be understandable when an agency is acting in a national regulatory role, it creates more problems when the agency is acting as only one of many landowners and government agencies in a particular locale.

a. Ecosystem management groups will often have many more agenda issues than just advising the federal government let alone a single agency. Agency missions and authorities are likely to be inherently narrower than ecosystem management problems in mixed ownership watersheds. (6)

b. Federal control will alienate a number of potential participants, some of whom will simply consider federal control inappropriate and unnecessarily burdensome and others of whom will hold deeper resentments toward the federal government. (7)

c. FACA arrangements tend to mesh poorly with existing local and regional institutions. Rather than linking up with institutions that already have organizations and norms, federal agencies under FACA must set up their own show according to their own standardized rules. This problem may be eased somewhat by a 1995 amendment to FACA exempting federal contacts with state, local or tribal officials from FACA procedures, but will still be significant in cases where there are no appropriate preexisting state, local or tribal organizations.

d. National partisan politics will sometimes play an inappropriate role, making the chartering process a political contest about which individuals should be members of the committee. (8)

 

3. Bureaucratic Delay and Cost. In part because chartering makes an ecosystem management group an agency's responsibility, simply producing a charter takes a considerable amount of time and energy. Proposed charters inevitably cross many bureaucratic desks, creating countless opportunities for arguments about appropriate definitions of duties, funding, administrative responsibilities, and so on. Proposed membership slates can generate particular controversy, varying from the partisan political concerns noted above to fears of "60 Minutes scandals." (9) After a committee is chartered, other bureaucratic burdens emerge, varying from responsibility for keeping and maintaining a thorough set of records in a format readily accessible to the public to simply achieving the necessary agency administration of its meetings. It is not clear that all of these costs or concerns are necessary in the ecosystem management context, especially when participants are not receiving government compensation.

 

4. Hobson's Choice. Given the situation described above, federal agencies are faced with a difficult and complex choice. First, they can accept the bureaucratic difficulties, costs, and cookie-cutter formalization of chartering a committee. Relatedly, they can use one of a variety of strategies to avoid direct application of FACA, including treating an ecosystem management group as a subcommittee of a chartered committee, contracting out the job of setting up an ecosystem management group, organizing it as an "operational committee," or essentially using the states or tribes as ecosystem management facilitators and drawing input from those governments. Each of theses options, however, has many of the disadvantages of the FACA chartering process, including the federal distance and control noted above. Alternatively, the federal agencies can stand back from any ecosystem management group that might emerge on its own and try to let it function free of federal control.

Standing back has its own costs. If the agency relies on traditional public participation processes -- essentially producing proposals in-house, then making them public, technically analyzing them, taking comments, and announcing decisions -- it removes itself from the ongoing dialogue that can generate creative new proposals and create the conditions for efficient, consensus based coordination with other landowners and agencies. If it attends meetings of a self-organized ecosystem management group, but leaves whenever discussion turns to matters that might involve federal policy, the agency risks exacerbating its image as arrogant and unresponsive and also undermines the capacity of the group to function at all where federal cooperation is important to the success of the overall effort.

In sum, FACA significantly constrains the organizational and coordinative options available to ecosystem management efforts. As a result, its laudable purposes of increasing public access and agency accountability may be subverted in the ecosystem management context.

 

Antitrust Law

As FACA regulates continuing relationships between federal agencies and others, antitrust law regulates relationships among businesses. The ideal of antitrust law is economic competition, which the law seeks to foster by challenging two types of relationships: price fixing and monopolization. Antitrust law is relevant to ecosystem management because different landowners in an ecosystem may be competing producers of a product. Therefore, the information sharing and coordination potentially involved in ecosystem management may look like a suspicious opportunity to reduce competition and raise prices. Lawyers working for timber companies have asserted that the antitrust laws pose a serious obstacle to coordinated landscape planning (Pauw et al 1993).

Without providing definitions of the terms or examples of their meaning, antitrust laws ban "every contract, combination .. or conspiracy, in restraint of trade or commerce" and all attempts and conspiracies to "monopolize any part of the trade or commerce" as well as successful monopolization. They may thus be even more sweeping and imprecise than FACA. Accordingly, there does appear to be some risk of exposure to antitrust suits for firms producing similar products and participating in ecosystem management groups. That risk appears to be limited, however. For the most part, a firm's antitrust liability is unlikely to be altered by ecosystem management activities and will be determined by other factors such as its competitive practices, relative market dominance, pricing policies, level of integration with firms up and down the product stream, and so on.

The only real antitrust question in most ecosystem management cases will be whether ecosystem management relationships serve as vehicle for some form of price fixing. The easiest and most unlikely case -- competitors discussing and agreeing upon the prices they charge in the context of an ecosystem management proceeding -- would clearly violate the antitrust laws unless immunized by other laws. There are two more plausible scenarios, however. In the first, an ecosystem management plan might lead to reduced near term harvesting, which might in turn lead to increased prices. In the second, competitors might use ecosystem management contacts to gain new information about each other's businesses, and alter their production and pricing strategies as a result. To some extent, ecosystem processes can be designed to avoid violations in these cases. First, they should avoid setting total production levels or formally allocating production among participants. They should also minimize exchange of commercially sensitive information and rely to the degree possible on averages and statistical probabilities.

As a practical matter, several other factors reduce the risk of liability. First, markets for many forest products appear to be at least regional and often national and international in scope, meaning that local management plans will ordinarily have no discernible effect on prices. Second, few private plaintiffs will be able to show the actual harm that is required for them to bring suit. (10) Third, public prosecutors are unlikely to bring suit where the agreements at issue promote important public policies.

Although the risks of antitrust prosecution may not be great in many cases, public officials could take action to clarify the legal situation and thereby reduce the risks of ecosystem management. Absent the most desirable solution of Congress passing legislation to limit and clarify antitrust liability for ecosystem management activities, the major potential source of protection from liability is state regulation. Under the "state action" doctrine initially enunciated by the Supreme Court in upholding California's system of price controls for raisins (Parker v. Brown, 317 U.S. 341 (1943)), individual states can immunize private action from antitrust liability by clearly establishing a state policy promoting that activity and actively supervising it (California Retail Liquor Dealer's Association v. Midcal Aluminum, Inc., 445 U.S. 97 (1980). It is not clear whether some of the existing state programs for achieving watershed planning, such as Washington state's (see Lynch 1995b), meet these requirements, but they might). Absent widespread and effective state legislation, federal agencies may have some limited capacity to protect private ecosystem management activities by using their regulatory powers to require them. This is a long shot, however, because no agency has clear authority to require (as opposed to participate in) ecosystem management and because the federal courts are hesitant to find implied immunity from the antitrust laws (Gordon v. New York Stock Exchange, 422 U.S. 659, 682 (1974)). On a more limited scale, the primary prosecutorial agencies, the U.S. Justice Department and the Federal Trade Commission, have authority to reduce the risk of liability by issuing guidance on the conditions under which they might bring suit, but this provides no legal immunity from private or state suits. (11)

In sum, the fundamental preference of the antitrust laws for economic competition and for competitors working in relative ignorance of each other's plans and resources is somewhat in tension with the collaborative aspects of ecosystem management. How much of a problem this will be remains to be worked out over time, although preliminary research suggests that it will be more of an irritant than a serious barrier. Federal agencies and the states, however, have the capacity to take many actions to reduce the problem. Nonetheless, clarifying legislation may be in order.

 

Property Rights and Takings Law

As noted above, property rights are created and enforced by society and have always entailed reciprocal duties to neighbors and the public. While the security and self-interest embodied in property rights may be essential to effective ecosystem management on a wide scale, they also pose some risks, which will be discussed briefly here because they are treated at length elsewhere (e.g., Freyfogle 1993, Sax 1993, Meidinger 1993). The Supreme Court has recently suggested (while limiting its holding to a narrow and unusual set of facts) that all limitations on land use which were not explicit in pre-19th-century property law, and therefore inherent in title, may be takings (Lucas v. South Carolina Coastal Commission, 112 S.Ct. 2886 (1992)). In addition, state and federal legislatures have recently begun to debate and occasionally pass legislation that treats every significant reduction in property value attributable to regulation as a compensable taking.

Legislatures have the power to grant compensation in such situations, but the historical assumptions often used in the argument that they should are seriously flawed. Nuisance prohibitions have always been flexible, and have adapted to changed circumstances. Property owners have never before had the right to be compensated every time the rules governing their property change in a way reducing its value. The standard has always been more complex, and has necessarily considered the reasonability of the restriction under the circumstances at the time.

In conferring such novel compensation rights on landowners, the new takings laws in effect convey a windfall to them at public expense. Moreover, and perhaps more importantly for ecosystem management, they impose most costs of social learning that reduce property values (such as the negative effects of destroying wetlands) on the public, while allocating most benefits of social learning that increase property value (such as new mineral uses) to landowners. This is important to ecosystem management for two reasons. First, while regulation is incapable of achieving, or perhaps even directing, ecosystem management on its own, it is an important element promoting progress through creative experimentation and negotiation among parties. Second, the contradictory incentives created by allocating the costs of new learning to the public and the benefits to private landowners are likely to increase the centrifugal forces in ecosystem management groups. The more inconsistent the economic interests of the actors are, the more difficult it will be to develop shared norms and expectations -- in a word, the more difficult it will be to achieve ecosystem management.

 

Conclusion

The organizational issues and legal trends discussed in this chapter do not paint a rosy picture of the future of ecosystem management. True, they were selected in part to illustrate challenges and potential barriers. Effective ways of working around many of them will doubtless emerge from the creative engines of social experimentation. Exactly what organizations and legal arrangements will best facilitate ecosystem management is impossible to predict in advance, and will doubtless vary by locale and scale of problem. No matter what, however, creative engines will truly be required, since so much of our amassed cultural and legal tradition favors hierarchical organization over team- and network-oriented forms, competitive relationships over collaborative ones, and centralized pluralist politics over community learning and deliberation. In addition, the sheer mass of exiting laws that could potentially affect ecosystem management -- the great majority of which were not discussed in the chapter -- is likely to create a kind of institutional friction retarding development of the new organizational relationship discussed earlier.

Because of these conditions, ecosystem management will necessarily have an improvisational and uncomfortable feeling for some time to come. The bulk of existing laws and organizations are unlikely to cause it or give it clear form in the near term. The most that can be hoped is that they will not consistently stop it in its tracks. Accordingly, many of the most innovative efforts to achieve ecosystem management involve difficult and sometimes risky balancing acts that occur on the margins of existing legal frameworks formed by laws such as FACA and the antitrust laws. One might describe efforts like the Applegate process and some habitat conservation planning processes (Vanderwood 1995), for example, as "bargaining in the shadow of the law." While they rely heavily on existing legal mechanisms and arrangements, they also necessarily move beyond them. To some extent they succeed because the threat of returning to unproductive, progress-blocking rules is unpalatable for the parties key to success of the effort. Eventually, perhaps, the most constrictive legal structures will atrophy, but they will add friction and complexity for a long time to come.

 


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Footnotes

1. Published in Kathryn A. Kohm and Jerry F. Franklin, Creating a Forestry for the 21st Century: The Science of Ecosystem Management, Washington, DC and Covalo, CA: Island Press, 1997. The research in this paper was supported by funds provided by the United States Department of Agriculture, Forest Service, Pacific Northwest Research Station, People and Natural Resources Program. The organizational models section was originally prepared for the Meeting on Institutional Barriers and Incentives for Ecosystem Management, Skamania, WA, October 20-22, 1994, also sponsored by the People and Natural Resources Program. Helpful comments by the participants in the Skamania Symposium, as well as by Ellen Baar, Barry Boyer, Jody Freeman, Albert Gidari, Kathleen Halvorsen, James Karr, Gary McCaleb, Michael Neff, Tom Princen, William Rodgers, John Tanaka, and the editors of this book are gratefully acknowledged. Size limitations precluded responding to all of their suggestions in this paper, but I hope to do so in forthcoming publications.

2. Errol Meidinger is Professor of Law and Director of the Environment and Society Institute at the State University of New York, Buffalo, NY 14260. (phone: 716/645-2159; fax: 716/645-2064; email: eemeid@acsu.buffalo.edu).

3. The shortcomings of markets for generating ecosystem management, however, do not mean that they cannot serve as effective mechanisms for achieving ecosystem management goals under appropriate circumstances.

4. The Fish and Wildlife Service, however, is working with a number of states to align its Endangered Species Act regulations with state forest practice regulations. Although this probably means more flexible federal regulations, it probably also implies increasing convergence among state regulatory systems.

5. Although these principles are carefully distilled from Grumbine 1994, Moote et al 1994, and Thomas 1994, in fact their prescriptions are more complicated. Grumbine lists nine key elements, and Moote five. Those in turn are in the form of either general philosophical tenets (e.g., humans are embedded in nature, human values play a dominant role in ecosystem management goals) or scientific principles (e.g., ecological integrity, ecological health) that cannot be applied to specific policy problems to generate definite solutions. The individual elements also appear to involve tradeoffs with each other.

6. As one Applegate organizer put it: "Applegate does a lot more than work for the federal government." Comment by Brett KenCairn, Conference on Understanding the Federal Advisory Committee Act: Implications for Public Involvement on the National Forests, sponsored by the Forest Trust and the Pinchot Institute, Washington, D.C. March 31, 1995 (hereafter "FACA Conference")

7. Commenting on his experiences in the "basically self-organized" Negrito project in the Gila watershed of Southwestern New Mexico, Forest Service employee Gary McCaleb observed: "Folks in my area are very aggressive -- 'we'll do it ourselves'... Lot's of people don't want anything to do with the Feds. I could offer these folks a FACA charter, I could offer them my salary, and they wouldn't take it." FACA Conference.

8. This problem occurred in the chartering of the Blue Mountains Natural Resources Institute, delaying completion of the chartering process for an inordinate time. Comments of John Tanaka, FACA Conference.

9. Comments of Rita Morgan, FACA Conference.

10. If prices do not rise as a documentable result, consumers will be unable to show injury. Competitors will experience no injury even if prices rise. Employees, stockholders, creditors, landlords and the like have generally had a difficult time showing sufficient harm to sustain an antitrust suit. E.g., Reibert v. Atlantic Richfield Co., 471 F.2d 727 (10 Cir.1973); Adams v. Pan Am World Airways, 828 F. 2d 24, 28 (D.C. Cir. 1987).

11. 28 C.F.R. Section 50.6; 16 C.F.R. Section 1.1. Although such guidance is not binding on private plaintiffs and even on the government, it does have important persuasive value and may reduce the likelihood of private or state suits.