State-sponsored environmental mediation: The Alaska forest practices act review

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ENVIRON IMPACT ASSESS REV 1991;11:311-331

ENVIRONMENTAL NEGOTIATION DISPUTE RESOLUTION

STATE-SPONSORED ENVIRONMENTAL MEDIATION: THE ALASKA FOREST PRACTICES ACT REVIEW

FRANK GAFFNEY AND ROBERT LOEFFLER

Introduction Alaskans expected a long, vigorous battle to change the laws that regulate private timber harvest. The amount of private timber harvest was rapidly increasing, as were concerns about logging's effect on the fish and wildlife habitats. Interest groups on all sides----even the timber industry--expected that laws would be changed. Nearby states had endured legislative battles over these issues. Environmental groups had prepared a bill for the Alaskan Legislature, but no group was confident of what a new bill would look like, or when it would be passed. Governor Steve Cowper directed state agencies to attempt an experiment in environmental mediation which became known as the Alaska Forest Practices Act Review. Fisheries and environmental groups and the timber industry joined state agencies in a consensus process to change the law. At this writing, a consensus bill is making its way--without significant legislative change--through the Alaska Legislature. It is expected to pass this year. The Alaska process was initiated to avoid the frustration and posssible stalemate that might well have accompanied long legislative debate over the complex and controversial issues involved. Neither the parties nor all of the issues were readily identifiable at the beginning of the process. The idea was conceived, proposed, and funded by the state administration. Thus, many of the rules were constrained by state law: public notice, state contracting, and funding. Alaska's geography created unusual logistical problems. Some negotiators required a full day to fly to meetings. This resulted in long meetings, often held weeks apart or by teleconference. The long meetings held far from home made it more difficult

Address correspondence to: Frank Gaffney, Northwest Renewable Resources Center, 1411 Fourth Avenue, Suite 1510, Seattle, WA 98101.

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than is normal in negotiations of this type for negotiators to consult and educate their groups. This article describes the Alaska Forest Practices Review. It is divided into four parts: Background, Organizing the Mediation Process, Negotiations, and Results and Conclusions. It presents an example of state-sponsored environmental mediation, focusing on the process used and lessons learned rather than the substance of the debate. An understanding of Alaska's experience may allow others to design their own processes using appropriate parts of the Alaska Forest Practices Review as an example.

BACKGROUND A variety of factors influenced the public perception of the forest practices controversy: weaknesses in the existing act, its meager funding, Alaska's unique landownership pattern, and the accelerating rate of private timber harvest. This section describes these factor and concludes with the identification of the concerns of the primary interest groups. REGULATION OF FOREST PRACTISES: STATUTES AND FUNDING

THE 1978 FOREST PRACTICES ACT. In 1978, the state established the Forest Resources and Practices Act, known as the Forest Practices Act (FPA). The act was passed partially in response to the 1972 amendments to the Federal Water Pollution Control Act (PL 92-500), which required states to develop nonpoint silvicultural pollutant control programs. The FPA gave the Alaska Department of Natural Resources' (DNR) Division of Forestry (DOF) the responsibility to regulate forest practices on state, municipal, and private lands. Regulations for the act took effect in February 1981. The FPA provides the fundamental regulations for forest practices on municipal and private land. It directs DOF to regulate forest practices to prevent water pollution and ensure reforestation. The act contains no provisions to regulate private land for other purposes such as fish and wildlife habitat, aesthetics, or recreation. Under the FPA, owners may harvest timber in any wildlife habitat, up to the stream banks, as long as they follow "best management practices" or otherwise prevent water pollution, and as long as they reforest the land. Municipal and private timber owners must notify DOF 30 days before building roads or beginning timber harvest, but DOF approval is not required: Stop orders, repair orders, and fines of up to $10,000 are theoretically possible, but the act contains an expensive, time-consuming requirement for a private hearing examiner for which DOF has neither funding nor training. As a result, there have been only two prosecutions under the law. "In one case, the defendant pled no contest and was not fined. The second case . . . was dropped because of a procedural error made by the hearing examiner" (Henly and Ellefson 1986).

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On state land, the FPA is not the primary method of regulating harvest. State land management statutes require public notice and require the DOF to work with other agencies to develop provisions for fish and wildlife habitat, recreation, and other non-timber uses of the forest. For example, separation distance from streams, trails and recreation areas, or provision for wildlife protection are worked out through the state land use planning system. On state land, agencies primarily rely on FPA regulations for technical details, such as culvert size or distance between waterbars. FUNDING. Since 1983 (the first year forest practice funds were accounted for separately), private timber harvest increased, but forest practice funding decreased. Between 1983 and 1988 funding dropped 56 percent (from $334,000 to $145,900), and full-time positions dropped from 7 to 2.5 (Alaska Department of Natural Resources, undated). In 1988, the DOF received 198 notifications on 57,034 acres, and performed 143 forest practice inspections (Alaska Department of Natural Resources 1988).

Landownership Three entities own most of the timberland in Alaska: Native Corporations, the Federal Government (primarily the U.S. Forest Service), and the State of Alaska. NATIVE CORPORATIONS. Soon after Alaska became a state, Native groups claimed their aboriginal rights to Alaska's land. These claims were settled in Congress in 1971 by the Alaska Native Claims Settlement Act. The act established 13 regional corporations and over 200 corporations for individual villages. The act gave corporations the right to select 44 million acres of land. In southeast Alaska, Native Corporations have the right to 550,000 acres, and most selected economically valuable timberland. According to analysis by the U.S. Forest Service, by 1985 approximately 88 percent of land conveyed to southeast Native Corporations met the Forest Service definition of timberland (Knapp 1989, p. 13). Elsewhere in Alaska where the timber is less valuable, the corporations selected a much smaller proportion of timberland. FEDERALLAND. Almost all Federal timber harvest in Alaska comes from the Tongass National Forest in southeast Alaska (Figure 1). The balance comes from the Chugach National Forest which surrounds Prince William Sound and is located southeast of Anchorage. Alaska's Forest Practices Act does not regulate timber harvest on Federal land. Federal timber harvest is controversial, but the Forest Practices Act Review was not intended to settle Federal timber issues. STATE LAND. At statehood, Alaska was granted a land entitlement of more than 104 million acres. The two national forests existed before statehood. Within

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national forests, the state may select land only for recreation and community expansion. In addition, Congress gave Native Corporations selection priority over the State of Alaska. In southeast Alaska, the state is the minority landowner and the minority timber owner. Outside Southeast Alaska, the majority of commercial timber harvest has been from state land. Some state timberland has been subsequently transferred to municipalities. COMMERCIALTIMBERLAND. The productive, coastal spruce-hemlock forest of Tongass National Forest supports a large logging and export industry. Most of the coastal forest contains uneven-aged old growth. Sitka spruce and western hemlock dominate the old-growth forest overstory. Mountain hemlock, western red cedar, and Alaska cedar are also present. Productivity in the coastal forest reaches 75 million board feet (MBF) per acre on good sites (Peacock, M., personal communication). In 1989, an unusual tree on southern Prince of Wales Island was estimated to be worth more than $10,000 (Mylius, D., personal communication). Timber from Federal land in southeast Alaska is exported as cants or pulp. Timber from Native land is exported as round logs. Most exports go to Japan with some to Korea and China. Much less timber is harvested from state lands which were selected for recreation and community expansion. Commercial forest land in interior Alaska supports mostly mixed stands of white spruce, white birch, and trembling aspen on upland areas, and white spruce and cottonwood in the floodplains of major rivers. Typical volumes are 3-10 MBF per acre, with up to 20 MBF on good sites in northcentral Alaska. Smallscale harvesting on state lands is primarily for fuelwood and rough-cut, green lumber for in-state use.

Accelerating Timber Harvest, Increasing Concern The late 1980s brought increasing public concern among fishermen, recreationists, and environmental groups about forest practices. SOUTHEAST

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Native Corporation timber harvest accelerated during the 1980s (Figure 2). By 1982, Native Corporations in southeast Alaska had received over twothirds of their land entitlement, and most had begun to harvest their timber. According to the University of Alaska, "The primary if not overwhelming factor in the timber harvest strategies of most village corporations was the need for cash. After years of waiting for conveyance of timber lands, many of the village corporations faced severe cash flow problems" (Knapp 1989, p. 36). Driven by a need for cash, and in the late 1980s by increasing timber prices, annual Native Corporation harvest reached 400 million board feet by 1988. VEST.

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Harvest (Million Board Feet)

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SOUTHCENTRALALASKA:A STATEPROPOSAL,NATIVEHARVESTBEGINNING. In Southcentral Alaska, near Anchorage, the beginning of Native harvest and an ill-planned state proposal ignited public concern in 1987. The Susitna Valley provides much of the recreation, hunting, fishing, and tourism opportunities for Anchorage, the state's largest city. In September 1987, the Alaska Division of Forestry proposed a long-term timber sale for all standing timber on 215,000 acres in the valley. The poorly planned proposal included limited provisions to protect wildlife, limited analysis of impacts, and no stream buffers. The reaction from the public, the tourist industry, fishermen, and others was quick, dramatic, loud, and united. The sale was almost unanimously denounced. The Susitna Valley Association formed to oppose the sale. It became Alaska's

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environmental group with over 4000 members. The proposal was withbut the timber harvest issues remained. In addition to the state proposal, harvest on Native corporation land was just beginning in the coastal south of Anchorage and in Prince William Sound.

Summary of Players and Concerns TIMBER INDUSTRY. In the timber industry's view, the Native Corporations have the most at stake. Native Corporations were concerned about reduced value of their timberland and changes to the FPA that might significantly increase the cost and time for timber harvest. They were also concerned that other state agencies would attempt to regulate out-of-stream forest practices by issuing new regulations to protect anadromous fish habitat and water quality. Timber operators--logging companies---operate on contract to the Native Corporations, the U.S. Forest Service, or less frequently, the state. Their spokesman is the Alaska Loggers Association (ALA), a 295-member association of logging companies. Although the ALA is a state-wide organization, most of its members are based in Southeast Alaska and operate on forest service timber sales, southeast Alaska's pulp mills are important ALA members. The mills operate using Federal timber supplied through a longterm contract. The ALA was concerned about the overall health and size of the timber industry, and about the effect of the FPA on timber harvest on Federal land. FISHERIES, ENVIRONMENTAL, AND OTHER NON-TIMBER GROUPS. Many fishing, wildlife, environmental, and recreation groups criticized the way timber harvests were being conducted. The most vocal criticism was from fishermen's groups, especially in southeast Alaska. Their main concern was the effect of timber harvest on salmon streams. They supported a 1988 policy developed by the U.S. Department of Commerce, National Marine Fisheries Service "to ensure that a minimum buffer zone width of 30 meters (100 feet) be maintained on each side of the stream, and should consist of the natural/existing undisturbed forest" (U.S. Department of Commerce 1988). No regulatory agency, either federal or state, had adopted the policy. Alaska's 1978 Forest Practices Act allowed harvest to the streambank. Near Anchorage, commercial fisheries groups echoed the concern of the southeast Alaska groups. The Susitna Valley Association and other environmental groups expressed broader concerns about potential effects of timber harvest on recreation, tourism, fish, and wildlife activities, especially on state land.

THE AGENCIES. In addition to DOF, two other agencies have jurisdiction over forest practices. The Alaska Department of Fish and Game (DF&G) must authorize activities within anadromous fish streams. DF&G has an active field presence. They comment on forest practice notifications and regularly accompany

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DOF on forest practice inspections. The agency forest practice budget is slightly larger than that of DOF. The DF & G is directed to "protect, maintain . . . . and extend the fish, game, and aquatic plant resources of the state in the interests of the economy and general well-being of the state" (Alaska Statutes). This responsibility to protect habitat gives it similar interests to many fish and wildlife groups with which it has close ties and which support its budget. Many DF&G employees voiced these groups' concern with forest practices in agency discussions and took the lead in recommending adoption of the National Marine Fisheries Service's proposal for a lO0-foot buffer zone. Fish and wildlife groups used DF&G as a partial spokesman for their views and used its technical expertise to defend their positions. The timber industry did not see the DOF (nor the DNR) as an adequate advocate for its point of view. DOF pushed for changes to the FPA to give it more useable enforcement powers and to increase its budget. The Alaska Department of Environmental Conservation has statutory authority to prevent water pollution, but because of lack of funding and more pressing priorities, it neither comments on notifications nor makes field inspections. It was less active in the Forest Practices Act Review than the DNR or DF & G. LEGISLATIVE ACTIVITY. In winter 1988, a southeast Alaska environmental group prepared a proposal for a new FPA. In the previous few years, forest practices acts and regulations had been significantly changed, or changes were being debated in Washington, Oregon, Idaho, and California. The governor and most interest groups believed that Alaska was in for a protracted, acrimonious legislative battle over revisions to the FPA. However, no group was confident of the outcome, either in terms of what revisions might look like or when it could be passed. These factors provided a productive forum for mediated negotiations.

Organizing the Mediation Process In early Summer 1988, Governor Cowper, at the recommendation of DNR's Commissioner, decided to head off a legislative battle by trying to find a solution to the controversy using a mediation process. In the next few months, the state's three resource agencies developed a proposal that would use a mediation process and that would involve the key players and respond to their concerns. The agencies wanted a process that would generate a workable, stable agreement that would be accepted by the legislature. The three agencies considered developing proposals for revisions by negotiating among themselves. They also considered establishing an interagency planning team and including representatives of timber and other interest groups on the team. The agencies decided to try a negotiation process that would include a neutral third-party mediator. They felt that without a neutral party facilitating the process,

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the historically warring interest groups would be unlikely to cooperate. In addition, interest groups would not participate unless the process assured them that neither the state nor the other side could coerce them. Thus, the agencies agreed that the process would work best by unanimous consent. Without a neutral mediator and the unanimous consent provision, groups would save their compromises for the inevitable legislative debate. Without the cooperation and agreement by the interest groups, any administration recommendation on forest practices was not likely to survive in the legislature. The agencies patterned their proposal after a successful negotiation process that took place in Washington state in 1986-87. That negotiation process resulted in an agreement, the Timber/Fish/Wildlife (T/F/W) Agreement, which revised Washington state's forest practices act in 1987. Those negotiations were mediated by the Northwest Renewable Resources Center of Seattle, Washington.

Committee Organization THE STEERINGCOMMITI'EE. The steering committee was the body responsible for guiding the review process and recommending changes to the state's forest practices program. Its membership included an equal number of timber landowners and non-timber groups. It also included representatives of the three resource agencies that had regulatory authority. The steering committee developed its recommendations by unanimous consent. The governor agreed to introduce any agreed-upon solution during the 1989 legislative session. The agencies agreed to promulgate any recommended changes in regulation. If no solution was agreed upon, the governor would develop and introduce his own solution. WORKINGGROUPS. Working groups were subcon]I~ttees of the steering committee. Two working groups fleshed out issues and made recommendations for their resolution. One group discussed riparian management, the most contentious issue of the negotiations. The second group discussed all other issues. Most of the work occurred in working groups. For different issues, different members of the steering committee were more active than others. (Most steering committee members had representatives on both working groups.) For some issues, steering committee members called on members of interest groups not represented on the steering committee. Final decisions were made by the steering committee. MEDIATORS. The mediators guided the mediation process but did not make decisions. The mediators chaired steering committee meetings. They documented meetings, facilitated conciliatory work between participants, chaired working group meetings, provided progress briefings to interested legislators, and performed other mediation tasks. The mediators were hired from outside state government to ensure an objective process. The DNR provided a staff person to the mediators.

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PUBLIC AND SPECIALINTERESTGROUPS. The process was explicitly designed to be an interest-group process, not a process for the general public. Interested groups not represented on the steering committee were brought into the process by asking them to help pick steering committee representatives, and some were asked by the steering committee to work with one or both of the working groups. Because steering committee members checked back with their constituencies, committed special interest groups and individuals who were able to attend most meetings generally developed a relationship with one or more steering committee members who represented them.

Picking the Negotiators In many disputes, the parties are readily identifiable: they are parties to a lawsuit, they are widely recognized coalitions that have been historical adversaries in the dispute, or they are an institution--for example, a local or state government. In the Alaska situation, few of these ready-made coalitions existed. Assembling the negotiating group, the steering committee, was a difficult first step. In retrospect, the agencies tried to accomplish three things in establishing the steering committee. They wanted the committee to be credible, workable, and representative. By credible, they wanted the committee to have the political power to see that any consensus solution would pass the legislature. By workable, they wanted the committee to be small enough to have a chance to reach agreement, and individual members to have the credentials, knowledge, and interest to reach agreement. By representative, they wanted the steering committee to represent the range of interests necessary to reach a politically acceptable solution. The committee could not omit any group with sufficient power to block any solution. In addition, representation had to be two-way. If change is inevitable, the individuals must have the stature to convince their constituent groups to accept solutions. COMMITTEE MAKEUP. The agencies discussed groups who should be invited to the steering committee. It became clear that the agencies could not choose among the dozens of interest groups. If committee members were to be recognized as representing the interest groups, those interest groups must pick their own representatives. Thus, the agencies agreed only to balance the group between those opposing and advocating stronger regulations: four timber landowners, four non-timber groups, plus representatives of the three resource agencies. To retain the balance but to ensure that municipalities with timber ownership was involved, the state also specified that one of the four timber seats be reserved for a municipal timber owner. The number of seats, four from each side, was arbitrary. The agencies picked four on the assumption that it made the total group size of 11 small enough to be workable but large enough to represent the required interests.

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The agencies asked organizations to find individuals with sufficient authority to make decisions at steering committee meetings. Committee members had to be capable of making meaningful decisions which their organizations would likely accept. This qualification was especially important in Alaska where individuals were sequestered in a meeting hundreds of miles away from their organization. It was simply not possible to check back at each turn of events and still participate effectively. In addition, the agencies asked that committee members be willing to listen to and understand other interests. Of lesser importance, the agencies asked that steering committee members have the necessary background to understand the issues. TIMBER LANDOWNERS. The system was explained to timber landowners at a conference sponsored by Sealaska Corporation (at Sealaska's expense). Sealaska Corporation is the regional Native corporation that serves southeast Alaska. It is also the largest private timber landowner in Southeast Alaska. The corporation invited all Alaskan Native corporations with timber landownership to Juneau for two days in August 1988. Additionally, 20 people who participated in the Washington T/F/W negotiation process were invited and they spoke about that negotiating experience. Washington participants included representatives of Indian tribes, timber landowners, logging companies, state government, and environmental groups. The speakers described their positive experience in Washington state and explained the advantages, disadvantages, and long-term consequences to fish and wildlife habitat, to the timber industry, and to the agency-timberpublic relationship. On the conference's second afternoon, the DNR Assistant Commissioner explained the proposed process to the assembled Native corporation representatives. The state described the process, asked for a critique, and then asked the conference to select three committee members. Participants at the conference selected five nominees and asked the agencies to pick three. They also asked that a fourth seat be added for the ALA. PUBLICRESOURCEOROUPS. Picking the non-timber participants was more difficult. There was a greater variety of non-timber groups than timber landowners, and there was no leader willing to coordinate the process. The DNR contacted groups and explained the process. This occurred through informal meetings and in two statewide teleconference meetings. In the first meeting, the department invited approximately 15 fisheries, wildlife, and environmentai groups, explained the process, and asked for their critique. Since it was not the state's decision who would be on the committee, the department asked the participating groups to invite whomever they felt would be appropriate for a second teleconference. At the second teleconference, the department once again explained the proposed process, asked for a critique, and asked the groups to agree on four members.

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Getting agreement on members was a six-week process for the non-timber groups. During that time, the groups realized that the process was going to require full-time participation for the winter. This requirement eliminated many grass-roots organizations that lacked staff. Alaska's size required that at least half the groups fly to any meeting, and the non-timber groups demanded funding for their participation. The groups also requested that a logging company, preferably a small logging company, be one of the timber industry seats. MUNICIPALREPRESENTATIVE. The state asked the three municipalities that had significant timber ownership to coordinate on one representative. CHANGESTO THE SYSTEM. The groups made few demands for changes to the process. In response to the request for funding, the state agreed to fund travel, but not per diem. In response to the timber landowners' request for participation by the ALA and the non-timber groups request for a representative of a smallscale logging company, each side's four seats was expanded to five seats, with the fifth timber seat going to the ALA. In addition, the municipal representative turned out to be a past president of another loggers' association that represented small companies that operate from state timber sales in the Susitna Valley.

Choosing the Mediation Team While the interest groups were selecting steering committee members, the agencies were choosing the mediation team. State contracting procedures required that the mediation team be chosen by competitive bid. The agencies prepared a request for proposals and advertised statewide. Seven proposals were received, including one from a firm located out of state---in Seattle, Washington. Neutrality was one of the state's evaluation criteria; it was the reason why the mediator was chosen from outside state government. But it was difficult to evaluate neutrality without violating state contracting procedures. Those procedures are designed to eliminate reputation, undocumented perception, and the likes and dislikes of outside parties. Yet, it is precisely the likes and dislikes of the steering committee members that was important. The easiest method to avoid this problem is for the steering committee to be the evaluation committee. The state tried to include a representative of both sides on the evaluation committee. Unfortunately, a few weeks were required for each side to agree on a representative, and the delay was too long. Time required that proposals be evaluated at the same time the steering committee was being selected. The agencies used consensus agreement by state agency representatives as a proxy for the interest groups. This would not likely work in a situation where most groups felt they had different interests from the state. In Alaska, however, the most concerned groups, the non-timber groups, had similar interests to the DF & G. Once the mediator was chosen, state staff helped the groups evaluate

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the mediator by asking environmental groups and mediators in other states to verify references.

The Public's Role Alaska has a strong open meetings law. The law requires that "all meetings • . . supported in part by public money . . . are open to the public . . . " It further requires that "reasonable public notice shall be given for all meetings required to be o p e n . . . "(Alaska Statutes). The steering committee adopted a liberal interpretation of these requirements after an ultimatum by one member. The public was notified of the process through two sets of display advertisements in six statewide newspapers. A notice of all steering committee meetings after the second meeting was distributed to the press statewide (250 organizations) and a press release was distributed after each meeting. In addition, all meetings were open and most were tape-recorded. Staff initially worried that this extensive public notice would turn the mediation process into a media event. Negotiations before the press would reward posturing and make it difficult for members to attempt brainstorming, to try compromises, and to come to agreement. In fact, few members of the general public attended steering committee meetings, although there was sometimes a 30-person audience of agency staff and interest group members. Reporters did not attend after the first session, and no newspaper printed a press release until the process finished. Working group meetings rarely had uninvolved observers. No one listened to a meeting tape. One of the authors completed additional research on this subject after the process. In Alaska, meetings supported by public funds must be open if decisions are made. Thus, steering committee meetings must be public, but a working group may discuss issues in private, as long as it will only make recommendations back to the steering committee. Therefore, public notice may be required for steering committee meetings but not for working group meetings. The agencies notified the public through advertisements and a mass mailing that the process was being conducted. They also solicited public comments for the steering committee. The request for comments occurred at the beginning of the process, and only 18 letters were received. These were not used in the committee's discussions because negotiators relied on their own links with their own constituents rather than on the state's formal request for comments.

The Mediation Team The mediation team consisted of Frank Gaffney, Project Director and Jim Waldo, consulting mediator and Chairman of the Board of the Northwest Renewable Resources Center (NRRC). Both had been involved in similar processes mediated

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by the Center in Washington and Idaho. Logistical and staff support were provided by Bob Loeffler of the Alaska Department of Natural Resources.

The Negotiations The First Meetings At the first meeting, steering committee members confirmed March 1, 1989 as the deadline for agreement. Fisheries and environmental groups were willing to participate only if legislation could be achieved at the upcoming legislative session. This goal required agreement by March 1. The first steering committee meeting was held in Juneau, November 15 and 16, 1988. One of the first tasks was to convince members that other parties would participate fairly, that they would not be coerced or misled into betraying their interests, and that the process might succeed. In addition, steering committee members needed to learn each other's viewpoints and interests, and also learn the technical aspects of the issues. Finally, the issues had to be identified, organized, and prioritized, so the committee and its working groups could efficiently begin work. TRUST. To help establish trust and to assure members that they were operating under a common understanding, the steering committee adopted five ground rules: 1. This effort will receive priority attention, staffing, and time commitment. 2. All parties agree to negotiate in good faith and to try to reach an agreement by consensus. 3. All participants in the negotiating bring with them the legitimate purposes and goals of their organizations. All parties recognize the legitimacy of the goals of other and assume that their own goals will also be respected. 4. Anyone may leave the process and the above ground rules, but only after telling the entire group why and seeing if the problem(s) can be addressed by the group. 5. All parties agree to be an advocate for an agreed-upon plan. However, interim agreements are not binding until a final plan is agreed upon by all. Two examples illustrate the problem of establishing trust. Initially, many steering committee members suspected that the Governor or a steering committee group had legislation ready to be introduced and were using the mediation process only as a strategy to pass it. More than one participant feared that the other side would not put much effort into the process, would blame their opponent for the

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mediation's failure, and would use that blame to generate support for their already written proposal. Others felt that the process would be used as a stalling tactic until the legislative session ended. Much public and private discussion was necessary to assure all groups that neither the Governor nor any group had written a draft bill and that no group was stalling. The timber industry's fear was heightened when the DF & G handed out a complete revision of the statute at a working group meeting. Private discussions with the mediator and meetings with DF&G were necessary to assure the industry representatives that they were not being used. The ground rules provide a similar example. The second sentence of the fifth ground rule, that "interim agreements are not binding until a final plan is agreed upon by all," was added at the second meeting. Participants were fearful that if the process failed, they would be coerced to support or defend interim agreements on individual issues. ORGANIZATION AND EDUCATION. At the first meeting, committee members identified issues they felt were important. The issues were listed on flip charts taped to the meeting room walls. Before the second meeting, each steering committee member was asked to submit a brief written statement of their perspective of and possible solutions to each of 43 different issues. These issues perspectives, all 104 pages, were distributed to all steering committee members. They provided a starting point for organizing issues, and they helped educate steering committee members about each others' views.

The Second Meetings At the second steering committee meeting, held December 15 and 16 in Anchorage, the state agencies held information briefings about the current forest practice system and the agency's role. This education process was essential for some of the committee members who had a limited understanding of what was covered by statute and regulation. Some of the problem areas were the result of a lack of funding or personnel. Also at the second meeting, the steering committee formed two working groups, consolidated issues and assigned them to working groups, and scheduled working group meetings. The pivotal issue for the committee was how to manage riparian areas along streams. These streamside areas often contain the highest value timber and were the greatest concern to the fishermen because they believed streamside logging damaged fish habitat. Because the riparian issue was complex and controversial, the Riparian Working Group considered no other issue. This group began with more than two full days of technical presentation to educate working group members about fish and wildlife habitat and timber harvests' effect on the habitat. All other issues were referred to the second working group, the Process Work-

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ing Group. By necessity, the group's jurisdiction included a wide range of issues such as composition of the Board of Forestry, enforcement, monitoring, and whether a forest practices permit would be required. While its list was longer, none of the individual issues discussed by this group was as contentious as the riparian issue.

Other Meetings After the second steering committee meeting, most work occurred in the working groups. At steering committee meetings, the working groups would report tentative resolution of issues and report on the issues remaining unresolved. Interim agreements were not approved until the steering committee reviewed and discussed them. In this way, all steering committee members had a chance to review all issues, they were kept informed of progress (or lack thereof), and had a chance to redirect the working group if a resolution was unsatisfactory. Many negotiators traveled a long distance to meetings. Because of travel, the steering committee meetings were long multiday affairs, often preceded by multiday working group sessions. The paperwork was overwhelming. The meeting packet for the Process Working Group meeting on January 30 and 31, 1989 was 74 pages. The long, infrequent meetings forced the negotiations to be concentrated and difficult. Participants were exhausted. In addition, because of the Alaska's size, many negotiators only knew each other through newspaper accounts or rumor. Even though they spent scores of hours negotiating with each other, trust levels were low and there were few channels of communication between the groups. From their first meeting, the Process Working Group began to slowly reach agreement on many issues. On the remainder, they narrowed down areas of disagreement. Before the final meeting at the end of February, disagreement focused on specific areas within issues, but approximately a half-dozen important issues remained unresolved. The riparian issue was more difficult. In the first few meetings, the Riparian Working Group was unable to significantly narrow the range of disagreement. To initiate progress, the mediators asked the steering committee to establish a technical subcommittee to that working group. The technical subcommittee reached agreement on a stream classification system based on physical characteristics, but it too was unable to agree on appropriate management techniques for each classification. To break this deadlock, the working group prepared a matrix that classified streams based on a stream's physical characteristics and potential harm to fish. The classification system and the risk matrix allowed the working group to divide this issue and to focus the discussion. However, wide disagreement remained on this issue before the last meeting in February.

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March 1, 1989: The Agreement-in-Principle Final negotiations were scheduled for February 27 and 28 at a half-empty shopping mall near the Juneau airport. Due to budgetary constraints and a shortage of potential meeting sites, the entire process had been conducted in sterile and imposing meeting rooms. Moving to the shopping mall got people out of town and allowed them to concentrate fully on the matters at hand. One wing of the mall was vacant and available to the negotiating team. The long hallways and vacant shops provided an ideal facility for walking, talking, and holding caucuses and working group meetings. Negotiations proceeded almost around the clock through February 28 and into the early morning of March 1. An agreement-in-principle was reached on a riparian management system for all stream types. The remaining issues were resolved during the steering committee meeting on March 1. The meeting adjourned and a draft, 67-page, detailed agreement-in-principle was published on March 8, 1989. The agreement-in-principle contained a detailed explanation of the concepts of the agreement, but did not include legislative language. Although steering committee members reached an agreement-in-principle on March l, their constituencies had not seen the final agreement. All members had pledged to keep their groups informed of progress, but the pace of negotiations toward the end did not allow them to do so. In addition, distances made it difficult to educate key group members throughout the process. All of March was used to sell the agreement to constituencies throughout the state. In addition, the committee held three meetings, two by teleconference, to refine the agreement-in-principle. A final agreement-in-principle was published on April 10, 1989. On March 24, 1989, another Alaskan event influenced the negotiations. On that day, the tanker Exxon Valdez hit a reef outbound from Valdez and spilled 11 million gallons of crude oil into Prince William Sound. State agencies, commercial fishing interests, and environmental groups were overwhelmed by the effort to respond to the spill. Many steering committee members were simply unable to focus on forestry issues in the aftermath of this disaster. Steering committee discussions rarely had full participation of the committee after that date.

Epilogue The month of April was necessary to transform the agreement-in-principle into a 30-page statute. Initial drafts were completed by the Alaska Attorney General's Office. It was reviewed by lawyers representing the steering committee and then, in teleconferences, by the steering committee. Many agreements were modified or refined by the committee during the drafting process.

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On May 5, 1989, five days before the Legislature adjourned, the steering committee agreed upon a revised statute, and Governor Cowper introduced the legislation. Hearings were held in both the House and Senate, but the Legislature adjourned without passing the bill. The Alaska Legislature could still act on the bill during the second half of the legislative session to be convened in January 1990. Despite the attempt to operate by unanimous consent, there was not complete agreement on the final bill. Two committee members disagreed with a part of the bill that they thought would affect Federal timber harvest. During Summer 1989, the timber industry agreed to voluntarily implement the bill's stream buffers. At the beginning of the 1990 legislative session, the committee reconvened to solve a problem affecting Federal harvest and to make adjustments based on the field experience of the previous summer. After changes, all but one steering committee member supported the revised bill. The revised bill passed the House without changes by a vote of 32 to 8. The agencies and the interest groups expect it to also pass the Senate and be signed by the Governor during the 1990 session.

Conclusions Schedule and Cost Reviewing the schedule and cost of the Alaskan experience provides useful information to those considering a similar process.

SCHEDULE. Following Governor Cowper's directive to the resource agencies in mid-June 1988 to prepare the Alaska Forest Practices Act Review, approximately two months were required to agree on a process, publish a description of the process, and publish a request for proposals for mediators. Approximately three months were required to choose mediators and negotiators for the steering committee. That length of time was driven by state contracting requirements and accommodation of a protest to the first contract award. Without the protest, the process could have been shortened by three to four weeks. The first steering committee meeting was on November 14, 1988; conceptual agreement was reached on March 1, 1989. The main portion of the mediation process itself required only three and a half months. Finalizing the agreement required one month. Drafting the legislation (and reaching agreement on legislation) required another month.

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COST. The overall cost of the process is difficult to estimate, because the largest cost is in salaries for agency, industry, and public interest group staff. Most people involved had other jobs to complete and were not budgeted for the project. As an example, however, the DNR spent approximately $227,000. These rough costs were estimated by one of the authors: Salary, travel, and miscellaneous Mediation contract 1 Travel for Steering Committee members General expenses (publication, advertisements, etc.)

$150,000 50,000 12,000 15t000 $227,000

The amount spent by DNR on the Forest Practices Act Review was one and a half times their entire forest practices budget for the preceding year! While DNR absorbed the cost of travel and most of the general expenses, the DF & G and some interest groups spent as much on salaries as DNR.

Lessons Learned A number of lessons may be learned from Alaska's experience with the Alaska Forest Practices Review. • TIME. Deadlines are necessary to force resolution of the issues. Without deadlines, negotiators might never be able to make the difficult decisions required. Conversely, too tight a schedule will ensure that agreement is not reached. Estimating time requirements is an art. The authors know of no method to accurately predict how long negotiations will take. It is tempting but unrealistic to create a schedule as if the mediation process requires only negotiations. Time is also required to set up the project and get constituent group buy-off of any agreement. The more that constituent groups, either boards of directors or key individuals, can remain informed and participate while the negotiations proceed, the less time will be needed for constituency approval. •

TECHNICALEXPERTISE. It is not important that all negotiators be experts in the technical aspects of the issues. Some very effective negotiators began the process with only a limited understanding of statutes, regulations, and forest practices. It is important that some negotiators have technical expertise

~The state funded the mediation contract from mid-November through mid-March. Just after funds were exhausted, the Exxon Valdez ran aground in Prince William Sound. All excess funds in state govemn~nt w e r e appropriated for oil spill response; n o n e w a s available to extend the mediation contract. The mediation team donated approximately $5000 of their time. The authors estimate that another $5000 would have been required to fund the mediation contract through completion of the project.

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and that expertise is available to all sides. Without confidence in their technical information, negotiators will not have the confidence to create solutions. In Alaska, the fishermen and environmentalists often relied upon the DF & G for their technical information. The timber industry representatives relied upon their employees. • PUBLICPROCESS. The Alaska process showed that it is possible to complete detailed and controversial negotiations while complying with strong public notice and open meetings laws. The consequences feared by agency staff-that the mediation would turn into a media event failed to materialize. •

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GOVERNMENTREQUIREMENTS.An ad hoc mediation process may be difficult to adapt to the rigid requirements of government. In the Alaska experience, public contracting requirements added significant time to the process. Public meeting requirements added both cost and unexpected logistical complexity. Public agencies must look critically at their legal requirements and adapt the mediation process, cost, and schedule to them. DISTANCE.Distance or similar logistical obstacles create difficulties in mediation. This may be a uniquely Alaskan problem, but large Alaskan distances meant that meetings were infrequent but long; it was difficult to keep constituent groups informed of the negotiations; and few negotiators began the process knowing each other. STAFFREQUIREMENTS. The staff time required of agencies and the public steering committee members was tremendous. The agencies did not understand how much time would be required when they began the project. In addition, there were not enough funds in the mediation contract to allow the mediation team to use both mediators frequently. Sometimes the mediators had to draw on agency staff to facilitate meetings. Fortunately, they were able to make use of a neutral agency staff from the Governor's Office to facilitate working groups, and these individuals were accepted by working group members.

The Alaska Forest Practices Review was successful in that a new forest practices statute---one acceptable to most Alaskans---is expected to pass the Legislature during the 1990 session. It is unlikely that this result would have been achieved through the normal legislative process without a multiyear battle. And it is unlikely that the resulting legislation would be as detailed with as many guarantees for all sides. The process provides a model that Alaskans can use in the future. While the state may or may not duplicate this model in its entirety, parts of the process will be useful for a variety of state processes. The Act did pass the Legislature in May 1990 with the support of all but one member of the Steering Committee. Adjustments made by the committee to the previous year's bill revised and streamlined a complicated riparian management requirement for private land in southeast Alaska. The revision left a portion of

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the requirement to be decided in regulation. In writing regulations, the agencies were not able to reach consensus among themsleves concerning that requirement. In June 1991, DNR issued draft regulations for public review. The draft included options for resolution of the remaining riparian issue. As of the fall of 1991, the issue remains unresolved. References Alaska Department of Natural Resources. 1988. Division ofForestry 1988AnnualReport, Juneau: Department of Natural Resources, p. 9. Alaska Department of Natural Resources. Undated. Internal memorandum prepared for Forest Practices Review. Alaska Statutes 16.05.020(2). Alaska Statutes 44.62.310. Henly, R.K., and Ellefson, P.V. 1986. State forest practice regulation in the U.S.: Administration, cost, and accomplishment. Station Bulletin AD-SB-3011. Minneapolis: Agricultural Experiment Station, University of Minnesota, p. 40. Knapp, G. 1989. Native Timber Harvests in Southeast Alaska, prepared for U.S. Forest Service, Pacific Northwest Research Foundation. Institute of Social and Economic Research, pp. 13, 36. Mylius, D., Alaska DNR, Division of Land and Water Management. March 28, 1990. Personal communication. Information from a timber cruise of Thorne Bay, September 1989. Peacock, M., Alaska DOF. March 24, 1990. Personal communication. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service. 1988. Alaska Region Policy of Riparian Habitat Protection in Alaska, p. 1.