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TOWARD A CURRICULUM IN CONSERVATION LAW AND POLICY
By

Daniel T. Eichinger

A THESIS
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
MASTER OF SCIENCE
Fisheries and Wildlife

2010

ABSTRACT
TOWARD A CURRICULUM IN CONSERVATION LAW AND POLICY
By

Daniel T. Eichinger

This study includes an exploration of conservation law as a discrete discipline by
reviewing the origins and evolution of natural resources related law. The study also
reviews the challenges confronting the conservation and natural resources field and
evaluates a course and program designed to provide interdisciplinary exposure to
conservation, science, and policy-making for MS/PhD and law students at Michigan State

University.

ACKNOWLEDGEMENTS

I am grateful to the following:

The members of my graduate committee: Dr. William Taylor, Dr. Kelly Millenbah,
Professor Michele Halloran, J .D., and Professor Dan Barnhizer, J .D. whose guidance,
energy, and wisdom served as a great source of personal encouragement and professional
enrichment.

To my employers, Rebecca Humphries and Russ Mason, for their consistent support of
this project and generosity in providing the time for me do it.

To the members of the Boone and Crockett Club: Jake Shinners, Lowell Baier, Morrie
Stephens, and Bill Demmer in particular for their sincere passion to conserve our natural
resources.

To my parents, John and Lynette Eichinger who agreed to transcribe many hours of
interviews without complaint or compensation.

To the Department of Fisheries and Wildlife and the College of Agriculture and Natural
Resources, for their material and financial support of this project.

To Pat Stewart who graciously assisted on the project during the data analysis phase.

iii

TABLE OF CONTENTS

LIST OF TABLES .................................................................................... v
LIST OF FIGURES ................................................................................. vi
LIST OF ABBREVIATIONS ..................................................................... vii
SECTION I ............................................................................................. 1
SECTION II .......................................................................................... 19
SECTION III ........................................................................................ 28
APPENDIX A ....................................................................................... 70
APPENDIX B ....................................................................................... 71
APPENDIX C ....................................................................................... 73
APPENDIX D ........................................................................................ 79
REFERENCES .................................................................................... 1. 80

iv

LIST OF TABLES

Table 1: Credit Requirements for MSU Law and F W Graduate Students .................. 21
Table 2: Program Requirements .................................................................. 22
Table 3: Weekly Topics in Overview of Conservation Law and Policy .................... 26

Table 4: Description of major themes that emerged from participant interviews including
example quotation ................................................................................... 64

Table 5: Number (%) of coded responses (out of 34) for participants that were assigned
to each of the major themes identified in Current Conservation Policy Issues ............. 69

Table 6: : Number (%) of coded responses (out of 73) for participants that were assigned
to each of the major themes identified in Evaluation of Overview Course .................. 69

LIST OF FIGURES

Figure 1: Source of curriculum content ......................................................... 23

Vi

LIST OF ABBREVIATIONS
AFWA: Association of Fish and Wildlife Agencies
BCC: Boone and Crockett Club
BLM: Bureau of Land Management
CW: Curriculum Workgroup
DFW: Michigan State University Department of Fisheries and Wildlife
FW: Fisheries and Wildlife
JD: Juris Doctor degree
MS: Master of Science degree
MSU: Michigan State University
NAFTA: North American Free Trade Agreement
NGO: Non-governmental organization

PhD: Doctor of Philosophy degree

vii

SECTION I: SCOPING CONSERVATION LAW
Understanding Conservation Law

Concern for natural resources conservation in North America can be tracked back
to the early settlements of the 17th century, well before the United States won their
independence from England. The origins of this conservation ethic have manifested
themselves differently at different points in our history. During periods of rapid
expansion, exploration, and development, resources were viewed as commodities and the
sheer vastness of the continent contributed to a sense that these resources could not be
permanently depleted. In spite of this manifest destiny driven desire to conquer and
tame the wilderness, clear instances of restraint, foresight, and forbearance suggest that a
conservation ethic has been an ever-present, if not dominant feature, of the American
consciousness. The purpose of this paper is to briefly discuss this conservation ethic and
trace significant developments of conservation law in our history. In addition to
providing a historical review of conservation laws, I will consider definitions for what
conservation is, frame the role of the primary actors in making conservation law, how
state and federal authorities overlap and reside adjacent to one another, discuss the means
by which conservation is provided for in this country through professional management,
and provide an operational overview of how conservation laws are administered in the
State of Michigan as a case-study—lite. This paper will also consider briefly the role of
the North American Model in providing an imperative for organizing conservation laws
in the manner in which we currently do. The overarching purpose of this review is to

begin to frame the breadth and scope of conservation laws in this country as a predicate

to a future discussion about proposing a method for teaching conservation and beginning
to probe conservation law as a distinct practice and field unto itself.
What is conservation?

Before considering the breadth of what could be considered conservation law, it is
useful for us to spend some time considering what is meant by the term “conservation.”
The term conservation first entered our lexicon in the early 20th century. In An American
Crusade for Wildlife, J arnes Trefethen recounts the origin of the term in the following
way:

“T he word conservation as it applies to natural resources did not come into the English
language until 190 7. In his autobiography Breaking New Ground Gifford Pinchot wrote
that, while riding in Rock Creek Park in Washington D. C. the thought occurred to him
that there was no single word to describe the interrelationship and sustained-yield use of
forests, soils, waters, fish, wildlife, minerals, and all other natural resources...He
discussed this gap in the vocabulary with a number of friends, among them Overton
Price, as associate in the Forest Service. In this discussion, either he or Price came up
with the word ‘conservation’. The word apparently was derived from ‘conservator’, the
title of an oflice in colonial India under the British Civil Service. When Pinchot
discussed the newly coined term with Roosevelt, the President adopted it immediately.
( T refethen 1975).

Harold Ickes, Secretary of the Interior under Franklin Roosevelt offered the following
definition for conservation:
“Conservation means the prudent use of our natural resources without waste or needless

destruction, and having in mind always, that, so far as not inconsistent with our own

needs, they should be preservedfor the use and enjoyment of future generations. ” (Bryan
1943 ).

There are several critical features to these definitions of conservation. First, it
describes the relationship between all segments of the resource arena meaning that it
applies across disciplines to forestry, wildlife management, fisheries management, land
use policy, and others. Secondly, implicit within the concept of conservation and the
meaning ascribed to the word by Pinchot, Overton, and Roosevelt is the principal of wise
use. Natural resources conservation has historically been equated to wise use (Young
1952). Wise use makes several important presumptions that are inherent to conservation.
First, that the considered depletion of some resources is sustainable, and second, that such
use is not necessarily harmful but in fact beneficial to the resource. Regulated
consumptive uses of our resources perform important roles in natural resources
management such as providing balance within the white-tailed deer population (Brown,
Decker et a1. 2000) Wise use is significantly related to the system developed for resource
management and described in the North American Model which will be discussed in
greater detail later. The salient point is that conservation as an ethic presumes and
encourages some level of use. As we will see, virtually the entire regime that can be
included in conservation law seeks to negotiate the differences between competing
notions of wise use. For this reason, conservation as a concept differs significantly from
other ideologies that pertain to the natural resources. The protection or preservation ethic
implies non-use and a locking away of resources, for example (Trefethen 1975).

Understanding that the term conservation refers to the wise use of the whole suite of

natural resources is essential to understanding the systems of laws, ethics, and models
that have been innovated to manage that use.
Conservation Law and Environmental Law

In my review of the literature surrounding conservation and conservation laws, I
have yet to encounter a working definition for conservation law. Moreover, if
conservation laws are not considered within a field unto its own, I presume it is
considered within the context of a similar and more settled field: environmental law.
Some suggest that it is appropriate to categorize conservation laws as such (Aagaard
2009). In consideration of the definition of conservation I concluded that the notion of
use is central to conservation as a concept. In that regard, if use is the central concept of
the definition of the term, it should also be considered the defining feature of
conservation law as well. The body of laws that pertain to use of the natural resources
date back to the settlement of the continent (Trefethen 1.975) and thusly predate the
genesis of the environmental movement and the field of environmental law that was
initially described in the early 1970’s (Davidson 1990). It has been further suggested that
environmental law is practiced in more or less traditional fields of law that pertain to
torts, property law, in addition to practicing on environmental statutes and environmental
law, and these represent the essential substance of environmental law (Davidson 1990).
Conservation laws, on the other hand, are apparently derivative from the North American
Model for conservation where a system of proactive management from executive
agencies with wildlife users. If conservation pertains to the sustainable and wise use of
the natural resources and if conservation law pertains to the laws, regulations, and

statutes that condition the circumstances of that sustainable use-that perspective is

fundamentally different than what Aagaard proposes as the fundamental considerations of
environmental law which are:

“The special difficulties with attempting to regulate conflicts among uses in the
environmental context, lies at the heart of all problems that arise in environmental law.
Wanting clean air or wanting to burn coal to generate electricity are not themselves
environmental problems, the problem is when those uses conflict, when some people want
clean air and others (or even the same people) want to pollute air to generate electricity
(Aagaard 2009) "

What Aagaard suggests is that environmental law is the negotiation of relative benefits
between one desire and the attendant negative environmental consequences. By its
nature, conservation law is the negotiation of allocating resources predicated on a use that
is validated to be of benefit to the environment. I propose that conservation law is a more
distinct field rather than a subset of the realm of environmental law. The North American
Agreement on Environmental Cooperation, which establishes the process for addressing
environmental policy and grievances under NAFTA (North American Free Trade
Agreement), define environmental law as something substantially different than the ethic
of “wise use” that is inherent in the practice of conservation and the expression of
conservation laws:
Article 45 Definitions offers the following in defining “environmental law:”
For purposes of Article 14(1) and Part Five:
(a “environmental law” means any statute or regulation of a Party, or provision
thereof the primary purpose of which is the protection of the environment, or the
prevention of a danger to human life or health, through

(i) the prevention, abatement or control of the release, discharge, or emission
of pollutants or environmental contaminants,

(ii) the control of environmentally hazardous or toxic chemicals, substances,
materials and wastes, and the dissemination of information related thereto,
or
(iii) the protection of wild flora or fauna, including endangered species, their
habitat, and specially protected natural areas
in the Party ’s territory, but does not include any statute or regulation, or provision
thereof directly related to worker safety or health.
(b) For greater certainty, the term “environmental law” does not include any statute
or regulation, or provision thereof the primary purpose of which is managing the
commercial harvest or exploitation, or subsistence or aboriginal harvesting, of
natural resources.
(c) The primary purpose of a particular statutory or regulatory provision for purposes
of subparagraphs (a) and (b) shall be determined by reference to its primary
purpose, rather than to the primary purpose of the statute or regulation of which it
is part.
Subsection b clearly establishes excludes from the purview of environmental law those
acts, regulations, and provisions that pertain to the harvest or exploitation of the natural
resources (1993).
Early Conservation Laws
During the settlement of the continent early cultivation and husbandry provided
the majority of the food stocks, however manipulation and use of the landscape was an
essential enhancement to early efforts at agriculture (Bergstrom 193 9). Hunting was
considered a necessary fact of an otherwise medieval existence and sport hunting was
considered a perquisite of the elite (Bergstrom 1939). Early conservation laws provided
for limits on harvest of desirable game species such as white-tailed deer and waterfowl.
In many states and territories, hunting proceeded unchecked so long as those resources
were allocated for private use. As commercial markets in desirable game species opened,

many states sought to limit the number of animals harvested so as to perpetuate the

species. By the end of the 17th century, Connecticut and a number of other states had

established statutes that closed hunting for deer during critical times of the year and
implemented stiff penalties for violating the law (Kawashima and Tone 1983). Settlement
era conservation laws did not pertain exclusively to wildlife. Aggressive laws that sought
to provide for the exploitation of the forests were enacted in the early 17th century to limit
the scope and size of the timber harvest (Kawashima and Tone 1983). Laws were not
enacted simply to provide for the perpetuation of desirable species but to accelerate the
decline of what were purported to be undesirable species, in particular the gray wolf.
Laws encouraging the killing of wolves were adopted by a number of the colonies. In
1630, the Massachusetts Bay Colony decreed the killing of wolves to be desirable and
provided a bounty as reward for doing so, Virginia followed suit not long afterwards
(Trefethen 1975). Later, in 1682, the colonies encompassing modern New Jersey
provided for a comprehensive predator bounty system(Woodward 1929). Despite the
need for establishing restrictions on harvest for flora and fauna, perhaps the single
greatest contributor to the decline in a number of game species were the dramatic
landscape changes that took place to clear and cultivate land. Land use, save for the
timber harvest restrictions referenced above is a topic that appears unaddressed by early
conservation laws. Nevertheless, these early laws seem to suggest that the concept of
wise use and conservation (which implies the sustained-yield use imperative) was present
in the earliest iterations and formulations of laws pertaining to the natural resources.
The Role of the State and the Public Trust Doctrine

State management of natural resources grew during the 19th century as policies
pertaining to the development and management of resources evolved from broad policy

declarations to the assertion of more detailed and nuanced control over specific species

and compartments of natural resources(Randall 1939). Early 19th century laws provided
protections for wildlife-game-birds in particular-during key times of the year including
prohibitions on hunting during breeding periods (Trefethen 1975). States carried out the
role of natural resources trustee and throughout the 19th century saw their role as natural
resources and public trust managers defined and refined by the courts. States were
presumed to have inherited the right to control wildlife that had been possessed by the
English Crown via Martin v. Waddell (1842 ) and Smith v. Maryland (1855; Matthews
1986). The concept of public trust that was affirmed in these decisions was derivative of
notions of public trust resources that date back to the Romans and track through English
Common Law (Sax 1970). Further, the scope of the public trust doctrine extends beyond
problems of ferreting out bottomlands ownership cases as Martin v. Waddell (1842 ) and
Illinois Central Railroad v. Illinois (1892) by encompassing a broad range of natural
resources questions in which public rights are diffuse throughout the spectrum of the
resource, and that the doctrine can be used as tool of litigation to ensure that resources are
being conserved and managed by the trustee(Sax 1970). These decisions provide the
framework for a doctrine that affirms that resources are held in the public trust and that
the state, acting as trustee Should manage them for the benefit of the public. The public
trust doctrine has played an important role in breeding conservation related laws and
policies and for orienting the management frameworks that implement conservation laws.
In more modern settings, some states have sought to institutionalize the concept of the
public trust doctrine by amending state constitutions to contain a clause that essentially
captures the concept of the public trust doctrine-moving the doctrine from a common law

setting to one with constitutional force (Kirsch 1997).

Other judicial decisions during this period described the scope of the state’s
responsibilities for wildlife. In Greer v. Connecticut (1896) the US. Supreme Court
ruled that the state owned wild animals and had a right to conserve them(Matthews
1986). These decisions Situated and reaffirrned the role of the state as primary
conservator of natural resources. They further affirmed that memorializing those
conservation practices would be the province primarily of law enacted and promulgated
in the states by pursuing statutory amendment through the legislative branch or through
the promulgation of rules and regulations by state agencies in an administrative law
context. While the institution of wildlife conservation law was generally the province of
the states, Congress became involved in the conservation law-making regime for the first
time with the passage of the Lacey Act of 1900 which pertained to supporting state laws
respecting the killing and taking of indigenous game and wildlife (Cart 1973).
Heretofore, the presumption that wildlife species were owned and controlled by the states
comported with the authority of the states to manage them under rights guaranteed by the
10th Amendment of the Constitution that provides that “Powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.

Competing, Overlapping, and Adjacent Authorities

The concept of the state as conservator and trustee of wildlife and natural
resources was partially reversed when the Supreme Court struck down an Oklahoma
statute in Hughes v. Oklahoma (1979) and with it, vacated part of the the decision
rendered Greer v. Connecticut. Rather, the court concluded, virtually any and all wildlife

can be subject to federal control because it can become an article of commerce. The

invocation of the commerce clause and its relationship to conservation laws and law
making has not substantially changed the role of the state as primary actor in the
establishment of conservation laws but has provided space for federal interest. So long as
there is no federal action on a subject and the law is not prohibited or preempted by a
constitutional provision, the states are generally free to regulate wildlife and other
resources(Matthews 1986). While Hughes v. Oklahoma may have changed the notion of
state ownership of wildlife later in the 20th century, conservation was practiced most
often at the state level, however not to the exclusion of significant instances of federal
interest and involvement. Near the end of the 19th century, the federal government began
to take a more formal interest in providing for the conservation of the natural resources
(Randall 193 9). In the early 1870’s disparate interests converged to create a host of
institutions and federal agencies to administer specific and individual pieces of natural
resources conservation. This early period saw the eStablishment of the Office of the
Commission of Fish and Fisheries and not long thereafter the first federal agency to deal
with forestry was established(Randall 1939). State wildlife management continued to be
refined in the early 20"” century with the more concerted establishment and creation of
state fish and wildlife agencies during the post-World War I era (Randall 1939).

The management of natural resources across various jurisdictions saw the
expansion of federal law in conservation with the passage of the Migratory Bird Treaty
Act of 1918, the Pittman-Robertson Wildlife Restoration Act of 193 7, the Dingell-
Johnson Sportfish Restoration Act of 1953, the Wilderness Act of 1964, the National
Environmental Policy Act of 1969, the Marine Mammal Protection Act of 1972, the

Endangered Species Act of 1973, and the National Forest Management Act of 1976. The

10

situation of federal authorities above those of the states provided for a concept of natural
resources conservation that moved beyond the strictures of political boundary. More
contemporary reviews of these laws and the disposition of federal and state authorities
suggest that these laws are still delimited in their scope and do not adequately address the
sum of ecosystems in their scope (Keiter 1998). Moreover, federal conservation require
the establishment and implementation of conservation laws at the state level. For
example, the Endangered Species Act requires that states that management species that
come under the jurisdiction of the act to provide certain protections within the scope of
state law. Federal conservation laws and state conservation laws and authorities are often
positioned adjacent to one another.

State Conservation Management: Michigan

At the end of the 19th century, state agencies were emerged to address the
depletion of game populations and other natural resources (Trefethen 1961 in (Jacobson
and Decker 2006). To ensure that citizen oversight of the publicly managed resources is
provided for, 47 states have a formal board, commission, advisory council or other entity
that either advises on natural resource management decisions or has certain decision
making authorities vested within them (N ie 2004).

The State of Michigan’s executive agency responsible for the conservation of the
natural resources is the Department of Natural Resources and Environment.
Additionally, Michigan has a Natural Resources Commission that has certain
management decision making responsibilities. Michigan’s conservation laws primarily
reside in three arenas: the Michigan State Constitution of 1963, Michigan Compiled

Laws Chapter 324, and the administrative rules and regulations promulgated by the

11

Department and the Natural Resources Commission. These rules take the form of
Fisheries Orders, Wildlife Conservation Orders, and Land Use Orders. Other, more
general rule making authority exists for the Department as well.

The Michigan State Constitution of 1963 Article IV Section 52 reads that:

The conservation and development of the natural resources of the state are hereby declared to be of
paramount public concern in the interest of the health, safety and general welfare of the people. The
legislature shall provide for the protection of the air, water, and other natural resources of the state from

pollution, impairment and destruction.

The Michigan legislature provides for the conservation of the natural resources through
the statutes that comprise the Natural Resources and Environmental Protection Act of
1994. This act directs the Michigan Department of Natural Resources and Environment
to perform those acts that may be necessary to provide for the conservation of the natural
resources of the state. The Act prescribes the powers, duties, and responsibilities of the
various actors that assume management of natural resources conservation. The Michigan
Department of Natural Resources and Environment is the primary actor overseeing the
establishment of policies aimed at conserving the natural resources, the construction of
the state conservation laws recognize that role and is organized in such a manner so as to
provide for the administrative decision Space to make rules and regulations that provide
for the conservation of the natural resources. Part 401 of the Natural Resources and
Environmental Protection Act (1994 PA 451) charges the Department with the
trusteeship of managing all animals in the state and grants the Department and the
Natural Resources Commission with the order and rule making authority it needs to

provide for the conservation of the natural resources.

12

This tiered or cascading model of law: broad declarative statements in the
constitution, establishment of executive level authorities in statute, and the administrative
and operational functions carried forward through setting regulations and promulgating
rules. By arranging the conservation laws in this manner, natural resource managers and
public policy makers are able to continue the fulfillment of the principles of the North
American Model for Conservation. The management system that has guided natural
resources conservation Since the late 19th century and remains the guiding principle to
this day ((Mahoney, Geist et a1. 2008)

North American Model for Conservation

Born out of the legal space created by the description of the public trust doctrine
in Martin v. Waddell, the state ownership of wildlife in Greer v. Connecticut and other
such decisions was a framework upon which professional management of natural
resources could take place. In describing the development of the North American Model,
Canadian scholar Valerius Geist wrote that:

“A system of management arose based on state-employed wildlife managers responsible
to elected representatives at the state, province, and federal levels. In support, there
grew institutions of teaching and research and a society to advance a profession of
wildlife management. It provides refereed journals, accreditation, and representatives to
bodies dealing with conservation. North America became a model for other parts of the
world, as evidenced in the creation of national parks, university curricula and research

in biology, and international use of North American wildlife experts as consultants. ’

(Geist 1988).

'13

Still today, the Model serves as the point around which a regime of management
practices, ethical considerations, and perhaps most importantly, a system of laws were
innovated that provide for the perpetuation and conservation of our natural resources.
The enduring federal laws that pertain to conservation are virtually all derivative of the
tenets established under the management concept innovated through the Model.
Additionally, the passage of state laws and the promulgation of state rules and regulations
are also derivative of basic tenets contained within the Model. To understand the nature
of conservation law is to appropriately understand the framework around which those
laws are organized. In 2001, Geist, Mahoney, and Organ proposed that there were seven
basic principles contained within the North American Model: wildlife as public trust
resource, elimination of markets for wildlife, allocation of wildlife by law, killing
wildlife for legitimate purposes, wildlife as an international resource, science as the
proper to discharge wildlife policy, and the democracy of hunting (Geist, Mahoney et a1.
2001) . Upon each one of these principles rests an important component of the law that
provides for the fulfillment of these principles.

1. Wildlife as public trust resources: Government authority over wildlife has been
secured by the courts via the public trust doctrine in Martin v. Waddell and
Illinois Central Railroad v. Illinois (Geist, Mahoney et a1. 2001). State laws and
constitutions have formalized the public trust doctrine by adding in to relevant
section of statute and state constitutions (N ie 2004).

2. Elimination of Markets for Wildlife: The Lacey Act of 1900 asserted federal
control over the introduction of birds and wildlife. Among the more controversial

of the bill’s provisions was the support the law gave in strengthening existing

14

state laws that effectively eliminated the market for dead wildlife (Cart 1973).
This key component of the law moved hunting away from a commercial
enterprise to a recreational or subsistence enterprise. In part, this law assists in
fixing the values of wildlife received by the public above those of the value
received by a private or commercial concern.

. Allocation of wildlife by law: Surplus wildlife is allocated to the public for
consumption (Geist, Mahoney et a1. 2001). One way in which wildlife is
allocated to the public is in the form of regulated take through hunting seasons. In
the State of Michigan, for example, game species are established by the
legislature and the Michigan Department of Natural Resources and Environment
and the Michigan Natural Resources Commission are charged with establishing
seasons that provide the take and harvest of those game Species via MCL
324.40104 (1994), MCL 324.40110, (1994), and 324.40113a (1994). Further, this
principal is complementary to the first, in that it renders each citizen a de jure
shareholder in most jurisdictions in the United States and Canada (Geist 1988)
building upon the concept that conservation laws are derivative and supportive of
the North American model.

. Killing wildlife for legitimate purposes only: an enhancement of the second
principle in that the value in wildlife is enhanced by the absence of a market value
in dead wildlife(Geist 1988). In keeping with the spirit of this principle, laws
were established to reflect an ethical imperative against waste and methods

deemed unsporting such as sink-boxing and jack-lighting (Trefethen 1975) and

15

were enacted to ensure that the public support necessary to sustain these forms of

wise use remained (Geist, Mahoney et a1. 2001).

. Wildlife as an international resource: The North American Model also conceives

that wildlife and natural resource interests surpass political boundaries (Gei st,
Mahoney et a1. 2001 ). A series of treaties and laws that govern internationally
migrating species, such as the Migratory Bird Treaty Act of 1918, is reflective of
this tenet.

Science as the proper tool for the discharge of wildlife policy: Michigan state law
compels natural resource officials to utilize, to the greatest extent practicable, the
principles of sound science when considering and rendering natural resources
management decisions (MCL 324.40113a (1994)). Memorializing the role of
science in state law is intended to inoculate natural resource decisions from being
reached at the compulsion of an ulterior'force. Moreover, with respect to the
State of Michigan, the laws as we discussed previously are constructed in such a
way to ensure that science and technical knowledge is directly informing the
establishment of conservation rules and regulations.

. Democracy of hunting: because resources are held in trust by the public they are
not allocated by wealth, land holding, or birthright. Each individual citizen has
the right to access and use the public trust resources. The allocation of resources
in this fashion, is markedly different then the allocation of resource access in
Europe, where privilege and land ownership connote access to resources (Geist,

Mahoney et a1. 2001).

16

The North American Model and its seven principles index the range and scope of
natural resources management in the United States and Canada. As a consequence of
this indexing, distinct lines can be drawn around the field of conservation law in
addition to the field of natural resources management. As conservation laws are
derivative of the seven principles described above they assist in informing the distinct
practice area for conservation law.

It is necessary to point out, however, that the North American Model as has been
described above is a relatively new phenomenon as a description that is not
referenced until the 1990’s in wildlife conservation literature. While elements of
what we refer to as the Model were certainly present during the much of the past
century and a half, neither Roosevelt nor his contemporaries such as Leopold and
others would have known what the North American Model is or was. This point is
not made to undermine the importance of the Model, rather to properly contextualize
it. Describing conservation along the lines of the North American Model is a useful
way of describing and considering the evolution of conservation behavior on the
continent. It was and is not, a system unto itself, rather a way to coherently draw
together the different principles manifest in American conservation behavior.

The concept of conservation has defined the interaction of North Americans with
natural resources Since the settlement of the continent. This ethic is predicated on the
notion that use, harvest, and exploitation of the resources can occur in a fashion that
is not only harmless to the resource but beneficial. Our dependence on effecting and
maintaining a sustainable pattern of use for our resources gave rise to the earliest laws

governing the conservation of the natural resources and has continued through the

17

refinement of our understanding of human behaviors and its impact on wildlife, and
wild places. Environmental law, is a relatively new field, having been described as
recently as the early 1970’s. Environmental law is predicated on a fundamentally
different ethic-one that seeks to eliminate diminution of the natural resources and
seeks to provide a framework around which conflicts Concerning negative
environmental impacts (such as pollution) can be negotiated. I will not suggest that
the fields of environmental law and conservation law are exclusive in the range of
their purview, but their perspectives and motivations are fundamentally different
which makes one an ill fit if it is only defined within the context of the other.
Understanding the field of conservation law also requires an understanding of the
model of natural resources management that has been innovated through the growth
of professional resource management as doing so frames in an area in which firture

conservation law practitioners can pursue their crafi.

18

SECTION II: DEVELOPMENT OF A COURSE AND CURRICULUM FOR
CONSERVATION LAW AND POLICY

Background

In 2008, faculty in the Michigan State University (MSU) Department of Fisheries and
Wildlife were approached by members of the Boone and Crockett Club (BCC), a not-for-
profit, national conservation organization about developing a program to teach

conservation policy and law. BCC claimed that they had conducted research showing

“a disturbing culture divide between senior and retiring state and federal resources managers and the mid-
level career professionals following them by some 15-20 years. The seniors were primarily agrarian based,
having farm and ranch backgrounds with a childhood connection to the land and its fish and wildlife, while

the mid career professional following had primarily urban backgrounds,”

BCC also believes that most current law students come from an urban or suburban based
childhood, which they believe equates to having no relationship to the land, presuming
that urban and suburban children and experiences provide fewer opportunities to develop
an ethic around wise land use, conservation, and consumptive recreation such as hunting,
fishing, and trapping.

In its original conception (see Appendix C for further detail), the program desired by

the Boone and Crockett Club consisted of four components:

1. A conservation law curriculum that specializes a law student in the
conservation/natural resources field and contributes toward the coursework
needed for a J uris Doctor degree.

2. An interdisciplinary component of course work and curriculum in fish, wildlife,

habitat, natural resource science, management and policy that grounds students in

19

contemporary conservation management issues. The interdisciplinary component

would complement a join M.S./J.D or Ph.D./J.D.

3. A law clinic in which contemporary conservation law issues are explored by
students on behalf of clients who may include land owners, non-govemmental
organizations (N GO’s), or state and federal regulators. This practical component
would include research, preparation of advisory memos, pleadings and court
appearances under the supervision of clinic staff.

4. A supervised internship/externship program where students would spend a
semester or summer working for state or federal natural resources agencies or
conservation/natural resource focused NGO’S.

BCC believed that a program comprising essentially these four parts would overcome
the biases of primarily urban/ suburban law students by providing particular training in
conservation, law and policy.

Faculty with MSU Department of Fisheries and Wildlife (DF W), staff from the
Association of Fish and Wildlife Agencies (AFWA), faculty and staff from the MSU
College of Law, and staff from the Michigan Department of Natural Resources convened
from December 2008 until August 2009, for a series of meetings to discuss the
development of the program. Those meeting resulted in the formation of a workgroup to
prepare a recommendation outlining a curriculum that could teach conservation law and
policy to interested law students who would presumably go on to occupy positions of
leadership in policy-making and judicial circles, and MS/PhD level Fisheries and

Wildlife students who would presumably occupy positions of leadership within

20

conservation oriented public agencies such as state fish and wildlife agencies and the
conservation NGO community.
The workgroup was composed of an individual representing MSU College of
Law, Michigan DNR, AFWA, and DFW. An guiding principle for the curriculum held
that it must cover topics and impart competencies that were relevant for modern natural
resources management to future policy maker.
Development of the Workgroup Recommendation
Between April and August of 2009, the curriculum workgroup (CW) met a total of four
times and convened around the following charges:
1. Evaluate existing courses within MSU for inclusion in the Conservation Law and
Policy Curriculum.
2. Develop and propose novel courses for an interdisciplinary curriculum.
Program Elements
The target student constituencies for this program, second and third year law
students, and MS/PhD level graduate students in Fisheries and Wildlife, function not only
within distinct units within the University (the MSU College of Law is a private college
affiliated with Michigan State University) the requirements necessary for graduation are
substantially different as well (Table 1).

Table 1: Credit Requirements for MSU Law and F W Graduate Students

 

Law Students Ph.D Requirements M.S Requirements

 

 

Credit Requirements 88 credits 30 credits, minimum

 

 

24 research credits 6-10 research credits

 

 

 

 

 

21

Additionally, the differences between overall credit requirements, the CW recommended
slightly different program plans for the graduate student cohort versus the law student
cohort (Table 2). Both cohorts are required to successfully complete an overview course
and an extemship experience, however electives, which are required for the law cohort,
are not required of the graduate cohort. This required the development of a program
predicated upon collaborative work and shared experience between the law student
cohort and the MS/PhD cohort, but that culminated in different outcomes: an area of
concentration for the law cohort and a speCialization and degree endorsement for
MS/PhD students.

Table 2: Program Requirements

 

 

 

 

 

 

 

 

Law Students Graduate Students

Overview Course (6 credits) Overview Course (6 credits)
Externship (6 credits) ‘ Externship (3 credits)

Electives (4-6 credits) Electives (optional, not required)
Total: 16-18 credits Total: 9 credits

Courses

The CW concluded that there were three primary inputs for courses content that
comprise the curriculum: novel courses, those which were developed specifically for use
in the Conservation Law and Policy Program, university courses, those which offer
material that is applicable to the field of conservation law and policy within the existing
catalog of university courses, and MSU Law courses, those which are offered as either

required or elective courses in the MSU College of Law course catalog (Figure 1).

IO
Ix)

 

 

College of
Law courses

 

 

 

 

Figure 1: Sources of curriculum content.
Electives

Courses that may be taken as electives were either courses that existed within the
university or that had been designed particularly for use in this program. The complete
lists of courses offered through the MSU College of Law or throughout other academic
units throughout the university are included in the Appendix A and B. Examples of
courses offered through the MSU College of Law that are applicable include, Wildlife
Law, Natural Resources Law, and Land Use and Planning. Examples of courses that are

applicable through other units within the university include Ecosystem Ecology, Policy

23

Evaluation, and Urban Land Management. The CW determined that applicable courses
needed to meet the following criteria:

0 Interdisciplinary in approach and methodology

0 Topical and contemporary

0 Skill-based, leading to a practice ready graduate
Interdisciplinary

Increasingly, the professional practitioners of conservation must operate within a

context of social, economic and political consideration (Nissenbaum and Lewis 2003).
As a consequence conservation as a field and discipline will increasingly require
professionals who graduate from undergraduate and graduate level programs who have
the capacity and the facility to think and work across disciplines (Touval and Dietz
1994). In reviewing the employment of interdisciplinary techniques by surveying texts
and course syllabi for reference to interdisciplinary themes, Nissenbaum and Lewis found
that while interdisciplinary themes related to policy, sociocultural aspects, economics of
conservation, case studies, and advocacy (the five themes they considered integral for
conservation professionals) were becoming increasingly present in conservation biology
texts and noted positive trends in course syllabi that suggested attempts were being made
to integrate these themes into core conservation coursework(Nissenbaum and Lewis
2003). Their findings suggest movement within the discipline to accept an
interdisciplinary method as an increasingly significant component of the practice. The
movement of the professional field and prevailing pedagogy toward teaching and

implementing interdisciplinary skill sets, suggested that interdisciplinary methods should

24

be employed within the context of this program to ensure that it was reflective of
contemporary methods employed by practitioners to undertake conservation work.
Topical and Contemporary, Skill Based

Considering these two elements together, recognizes that effective pedagogical
methods suggest that the teaching wildlife conservation is enhanced through the
application of learner strategies that integrate active learning techniques(Ryan and Henry
Campa 2000). Making use of techniques that involve case studies of current or
contemporary problems and addressing them by replicating collaborative problem
solving and other tools employed by field professionals, better equips students with the
skill set needed to be immediately impactful contributors to the profession (Ryan and
Campa 2000). Ensuring that these elements were present in courses to which the
program could be linked and courses that were developed intentionally for their use
within the program meets the current thinking that effective education within the field of
conservation is founded in part upon the successful integration of interdisciplinary
teaching methods and an exposure to issues that directly and indirectly provide the
context in which the field of conservation is practiced. Imparting what is determined to
be essential knowledge and skill sets through an active, practice-based learning
environment prepares students for scenarios and situations they are likely to encounter in
professional environments.
Novel Course Development

While courses developed within the College of Law and throughout the
University would provide an important source of courses that could be taken as electives

to enhance more formative coursework, the CW felt that it would be necessary to develop

25

a suite of courses specifically for use within this program. Descriptions of two courses,
one pertaining to the North American Model and the other on Agency-Based Fish and
Wildlife Management law are included in the Appendix for reference, but were not
evaluated in conjunction with this study.
Overview Course

During the meetings held by the CW between April and August of 2009, the CW
developed a syllabus for the gateway or overview course which is listed as a requirement
for both the cohort of law students and graduate students. Formally titled “Overview of
Conservation Law, Policy, and Practice,” the overview course was designed to provide an
introduction to the two disciplines being convened within the program: law and
fisheries/wildlife management. Thematically, the course brings together different
elements of both disciplines exposing students from the graduate cohort to practices and
methodologies of the law and policy practitioner. Similarly, for students in the law
cohort, the course is intended to introduce science-based natural resources management
and the principles and methodologies employed by that field.

Table 3: Weekly Topics in Overview of Conservation Law and Policy Course

 

Week Introduction: overview of contexts in which conservation law is practiced
1

 

Week Science of conservation law: biological and ecological concepts of management
2 and conservation law

 

Week Philosophy and ethics: sources of ethical standards, ethics and philosophy for
3 wildlife and natural resources

 

Week Federal Fish and Wildlife Regulation: Federal agency overview, sources of

 

 

 

 

4 federal law related to resource management, Pittman-Robertson/Dingell-Johnson

Week State Fish and Wildlife Regulation: state agency responsibilities to manage

5 wildlife, jurisdictional issues between state/federal management, multilateral
state DNR’S

Week Federal Natural Resources and Habitat Management: Federal mining and

6 forestry royalty systems, national parks/forests, BLM, tribal resources mgt

 

26

 

Table 3 continued

 

 

 

 

 

 

 

 

 

Week State Natural Resources Habitat Management: parks and recreation, hunting
7 and fishing, state forest management

Week Refining Skills for Practice-advanced legal research/writing

8

Week Legislative Drafting

9

Week Advocacy before judicial and administrative tribunals

10

Week Role of NGO’S

11

Week Alternative Dispute Resolution in the administrative context

12

Week Private actors in natural resources management: equipment manufacturers,
l3 guides, conservation oriented business and industry

Week Client management skill and ethical consideration

14

 

 

27

 

SECTION III: EVALUATION
INTRODUCTION

An overarching goal of the conservation law and policy program (Program)
described in the previous section is that the skills and information taught in the Program
reflect the skills and knowledge needs desired by current natural resources policy
practitioners. An additional goal is that the Program remains nimble in for the future by
institutionalizing the capacity to change to meet the future needs perceived by natural
resources policy practitioners. To accomplish both goals, I designed a protocol to
evaluate the 14-week overview course described in Section II. The purpose of the
evaluation is two-fold: to probe and baseline current challenges confronting the natural
resources conservation field and to determine how effectively the overview course is
situated to address those challenges.
METHODS
Participants

I identified a sample pool of 12 prospective interview candidates for participation
in this study. The candidates were selected for their expertise in the field of natural
resources management. Of the 12 candidates, 9 interviews were conducted (participants).
Of the 9 interviews, that were conducted the data collected from 8 of those interviews
were used to generate the data set used in this study. One participant’s data was
dismissed prior to coding because that individual had previously provided input into the
development of the Program.

All but one candidate was contacted via email to solicit their participation in the

study. One candidate was solicited via telephone. Of the 12 candidates, one declined to

28

participate after the initial email solicitation and two candidates were not able to arrange
their schedule to accommodate an interview either in person or via telephone.

The participants included a legislative affairs manager for a state-based
conservation organization, two executive directors of statewide conservation
organization, a legislative director for a national conservation association, the chairman
of the board of a national conservation organization, a former senior federal official, 3
state assistant attorney general, and the chief legal officer for a state department of
natural resources. The participants were identified and solicited because of their
professional affiliation with natural resources conservation and their understanding of the
machinations of conservation law and policy.

Procedures

The point of quantitative research is to classify, count, and construct statistical
models to diSCern overall patterns that explain observation (Miles and Huberman 1994);
however the point of qualitative research is not the normalized distribution of data points
- it is to collect extensive, in-depth data and details about specific sites or individuals
(Creswell 2007). As Creswell (2007, p. 126) notes, “The intent of qualitative research is
not to generalize the information but to elucidate the particular, the specific.”

Qualitative research is inherently exploratory in nature, and the researcher often
only has a rough idea of what they are looking for. As such this methodology lends itself
well to studies seeking to explain shared experiences among a specific group of
individuals (Miles and Huberman 1994). Mine is a phenomenological study (Creswell
2007) designed to try and understand the natural resources practitioners perspective on

current and future issues, and determine how they perceive the effectiveness of the

29

overview course in the Program at overcoming those challenges. I used multiple
individual interviews to build a picture of the participants shared perspectives (Manen
1990 ), and distilled that information into descriptions of its “universal essence”
(Creswell 2007, p. 60). Specifically, I conducted a transcendental phenomenology
(Moutsakas 1994) which incorporates Husserl’s (1970) concept of epcohe where the
researchers “bracket” or segregate their personal opinions and feelings as much as
possible to reduce subjectivity and to gain new perspectives on the phenomenon being
studied.

Individual semi-structured interviews were used to investigate the participants
current perception of challenges confronting the natural resources profession, the role of
the judiciary in those challenges, an awareness of existing conservation law and policy
training opportunities and their the perception of how well the overview course for the
Program provides the essential training they perceive future practitioners need.

Participants individually arranged their interviews and each was conducted at a
location of mutual agreement; in each case my private office or theirs. One participant
was interviewed via telephone. All interviews were audio recorded with the consent of
each participant. All procedures were approved by the Michigan State University
Institutional Review Board Use of Human Subjects (IRB # x10-337).

Data Analysis

Analysis was a three step process. First, participant responses to interview
questions were transcribed and independently coded by 3 researchers. Participants were
provided pseudonyms in this paper to protect their identity. Primary qualitative

document analysis was conducted on all transcribed materials (Creswell 2007) and codes

30

were developed inductively (e.g., emergent themes and ideas based on participant
responses) by the researchers. Each complete idea or thought articulated by the
participant was coded and counted. Second, all 3 researchers compared their results and
mutually developed five overarching themes from the data. Third, each researcher
independently re-coded each interview using the agreed upon themes and a consensus
was reached on a single code for each complete idea represented in all 8 interview
transcripts.
RESULTS AND DISCUSSSION

Five major themes were identified through the interview coding (Table 1).
Interviews were broken into two distinct sections for analysis: determining the current
challenges perceived by current natural resources conservation practitioners in
conservation law and policy and evaluating the overview course for the Program. The
semi-structured interview format provided some flexibility in how each interview was
conducted, consequently some of the responses and data generated for both the Current
Challenges in Conservation Law and Policy section and the Evaluating the Overview
Course section may have been captured during the other interview segment.
Current Challenges in Conservation Law and Policy

The interviews were designed to assess each participant’s understanding of the
current challenges facing natural resources policy makers. In the general sense, the
interview questions were designed to try and probe the extent and nature of the problems
they participants confront and who some of the relevant actors in those challenges may
be. The first eight questions of the interview were oriented toward developing,

understanding, and recording the challenges confronting current natural resource

31

practitioners. The purpose of probing this knowledge was to establish a baseline for the
types of challenges and inadequacies the field perceived about itself. In the ensuing
discussion, I will examine the major themes and the sub-themes that emerged and were
identified during the data coding process. In many cases the themes and the sub-themes
offer insight and perspective that is additive to, and not necessarily exclusive of, other
themes and sub-themes emergent from the interviews.

Three major themes (knowledge, trust/distrust, funding; Table 5) emerged during
this first component of the interviews.

Knowledge

Knowledge emerged as a main theme which generated 67.6% of the comments
generated from all 8 participants in the first of the interview segments. The concept of
knowledge encompassed the notion of awareness, that is, how aware the profession was
of other actors in the policy making arena and how aware other actors were of the
conservation field. In discussing this theme, the following sub-themes emerged:
disconnect with nature, lack of stewardship, lack of public knowledge, the economic
value of fisheries and wildlife, disconnect with science, and training.

Disconnect with Nature

The participants indicated that the public’s declining participation in hunting and
angling (consumptive outdoor recreation) was indicative of an increasing disconnect
between the public and nature. This disconnect, they believe, will have a confounding
effect on the ability of natural resources managers to effectively provide for the
conservation of the natural resources in the face of a declining or increasingly ambivalent

user base. Philip expressed this idea by stating:

“1 think that what the future generation of resources managers will have to
confront is the fact that fewer and fewer people will choose to spend less time in
their venue-choosing to go outdoors, be active and spend time pursuing outdoor
activities. For instance, we are busy trying to protect and add to habitat for
waterfowl in theface of a declining base of waterfowl hunters and we are alreadv
looking at overgrazing by Canada Geese populations that skyrocketed wit/rout
many management tools to address those because nobody is much hunting geese
anymore at least comparatively to what was the case thirty years ago or
compared to the geese populations that we have to manage. So what I see, unless
we can figure out how to reverse the trend, a greater disconnect between the
resources that we are trying to manage and the interest and aptitude of the people
of the body politic as a whole in a way that is going to affect management options
in the future. "
So long as conservation management decisions are dependent in part upon the
participation of the public to provide management control for game species or funding
through the sale of licenses, which is discussed later on in additional detail, the
effectiveness of those decisions will correspond to the rise and fall in participation.
Lack of Stewardship
The disconnect between the public and natural resources suggested to the
participants, that as that disconnection grows the field will have to confront a
corresponding decrease in a general sense of stewardship and willingness among the
public to participate in those activities. That sentiment is reflected in part by the

statement offered above that suggests that declining participation in hunting will limit

33

management options that are employable by resource managers - if the primary
population management tool is no longer as effective as it historically had been-what
does that imply for the future of managing wildlife populations? This sub-theme
emerged from the notion that the public is losing a sense of stewardship or perhaps that
their sense of stewardship no longer manifests itself in a way that easily recognizable to
natural resource managers (e.g., participation in hunting and fishing sports). If that is the
case, it implies that projection of public values onto fish and wildlife resources may have
changed undetected by the field, which Dennis suggests, necessitates a discussion among
public actors and natural resources practitioners, “how society values fish and wildlife
resources vs. how resource managers see fish and wildlife, those societal and behavioral
aspects of how people view fish and wildlife and how they would like it to be managed in
their best interest.” While other participants identified these disparate perspectives as the
primary challenge to natural resource managers Philip stated:
“the main issues that land and water resources managers are going to have to
confront is the increasing amount of disconnect between the average populace
and the broad public, and the kinds of things that natural resources managers do
in the interest of resource stewardship. It is much more disconnected now than it
has been any time in the country '5 past, and looking at what the future weighs
suggests that it is going to continue to become more disconnected. So we are
going to be dealing with management issues that fewer andfewer people have any
understanding of

Lack of Public Knowledge

34

The discord that the participants identified in the notion of stewardship between
resource managers and the public may be representative of a Shared lack of knowledge
among the public about the essential elements of natural resources conservation. If the
public projects a different value set onto the resource landscape than the professional
natural resource managers, the management options will necessarily be limited because
the public will have the ability to influence political or judicial actions that redefine
management actions to comport with their viewpoint. Dennis articulated this sentiment
when he said “this gets back to societies’ perception of fish and wildlife and how they
believe it should be managed VS. how the professionals conclude it should be managed.
When individuals or organizations feel aggrieved then they run to the courts and they
have a good track record of having the courts rule in their favor.”

Understanding the Economic Value of Fisheries and Wildlife

Perhaps one explanation for why resource managers may struggle to effectively
assert the importance of natural resources conservation in the public dialogue is that some
of the ancillary benefits of sound fisheries and wildlife management are not well
understood by the public. In referring to the desired awareness’s of various policy
makers, Susan suggested that changing and elevating awareness of the economic
contributions of well managed fish and wildlife resources is an importaht undertaking:

“But I guess I would tie it to if you are really going to try to tip that scale, and

make sure that more judges or almost every judge in the state has that

background, I would tie it to economic studies so that you 're making it part of the

core curriculum as one of Michigan '3 economic drivers. You 're trying to make

35

people aware of all the economic pieces that drive the state and putting it in

there. ”
This statement implies that conservation is not successfully contextualized by discussing
the values that attend sound conservation practices or it may suggest that as a field no
endeavor to do so has been attempted. Nevertheless, the point compels the notion that
the conservation profession should in part define and describe the nature of the work
within the context of a host of other important social metrics that include economic
considerations.

Disconnect with Science

The notion that the public lacks certain knowledge and performs (or does not
perform) certain actions desired by conservation professionals generically speaks to the
public’s perception of the field and the issues that attend it, but it also underscores the
different means in which the public and the resource professional subscribe to a scientific
paradigm to evaluate that knowledge and those actions. The participants suggested that
while the field of conservation is necessarily predicated on the notion of employing the
best science, the public may or may not use science in the same way to adjudicate their
values and the perception of value in natural resources. That phenomenon is manifested
in the way that legislators (if legislators can be counted as proxy or amplifiers for public
values), for example, employ science in negotiating the relative value of a particular
action. “Most policy managers that don’t understand the science behind conservation
decisions aren’t going to understand why they are important. And I think that’s half the
problem right now. I think you miss when politics weighs too heavily into those

decisions and unfortunately and that is a product of term limits in Michigan” said Kevin.

36

Kevin seems to suggest that otherwise scientifically sound management decisions may
not necessarily be a politically sound decision. As a field, natural resources conservation
has evidently not determined how to effectively cast scientifically valid management
decisions as necessarily good political ones, or if they have it has not been done so
consistently. Susan expressed this by stating “the science can tell you one thing but its
society that dictates how you implement it and that is where most of the battle is. And so
it is going to be very important that they (natural resources professionals) understand the
difference and that they can articulate that in their decisions.”

Training

Ineffectively connecting science with other public values and necessity may be a
product of insufficient training for natural resources professionals. The participants
seemed to indicate that the current training of natural resources professionals left them
inadequately prepared to understand the various inputs that contribute to the resource
management system. Randall clarified this by stating:

“I developed a course at my alma mater in natural resource problem solving.

because when I was [head of unit] I had so many young biologists that I was

hiring from my alma mater who were dropping out of the profession because their

interpretation was that political interference was corruption. Somehow this is

corruption, ‘1 saw it on TV, and politicians are meddling around in our biological

work’. ‘This isn ’t right — I '11 just go build houses. ’ You know, could you guys just

return to this planet? If you are not working in a swirling political tornado

you’re not working on anything important. In a democracy, that ’s how you [mow

you are working on something important. You’ve got the attention of the political

37

system, you're a trusted advisor. What kind of a bone headed idea is this that we
are going to leave it up to the biologist? No sensible society would do this. Who
told you this nonsense? So I went back there and taught a course to get rid of that
idea.
This comment points to the notion that current resource professionals are being
inadequately prepared to confront and navigate the various legal and political
considerations that overlay any public management responsibility. As a consequence,
resource managers who are incapable of quickly repositioning their thinking, find
themselves unable to connect the importance of their work with publicly expressed values
on the natural resources. Inadequate preparation is leading to a crop of public resource
managers who are ambivalent about public engagement. Dennis confirmed this by
stating “the other one is the societal challenge of how do we engage the citizens of our
country and of our state in contributing support for and understanding of natural resource
management issues. . .I see that we haven’t done a really good job of convincing, that’s
not the right word, of informing people of the science of fish and wildlife management
and the levels at which these resources are managed.” This concept of training is a
central component to the Program. The suggestion is that current educational and
training opportunities are not preparing conservation professionals to truly understand
and successfully work within the actual dimensions of the field. The comments explored
in this sub-theme intimate at a field that trains aggressively to the scientific requirements
of profession, but does not emphasize or provide effective training that may confront the
political or social contexts in which the field must interact. Moreover, some participants

felt that many of the challenges confronted by the field are more or less related to the

38

capacity of the field to work within those other contexts and not necessarily reflective of
a limitation on the understanding of the scientific context as articulated by Ben:

“I don’t think we ’re missing very much knowledge. I think the research that we
have now is about 90% of what we need to do a great job. The way I view
management right now is that it is very common that 10% of our current
knowledge is currently employed on a regular basis. So when I think of issues as
far as the technology ones, the knowledge, the science side; its how do we get
more of what we know in use. Being used for decision making, being used for
everyday management. I don ’t make a strong pitch for needing tons and tons
more research "

Trust / Distrust
It should be no surprise that with the lack of knowledge by and among the many

actors that have inputs into natural resources conservatiOn that there is a correspondingly
high level of perceived distrust among those actors as well. Approximately 21% (Table
5) (emerging from 5 of the participants) of the comments emergent under this theme
identified specific areas of distrust within the context of the following subthemes:
politics, responsiveness to global society, stakeholders, and collaborative processes.

Politics
The emergence of this sub-theme was not necessarily the product of one (or a

variation) of one basic concept. Rather, comments coded to this sub-theme explored
different aspects of the political role in establishing trustful or distrustful environments.
Susan identified a lack of strategic vision or capacity to undertake and remain faithful to

strategic processes:

39

“1 think because of [state A 'sjterm limits, the lack of understanding from our
legislature about what '5 happening, because of the [higher level decision making
authority within the agency] lack of strategic focus. I think in general, there is
nobody in the state, because our partisan politics are pulling things apart, there
are very few people who are looking at the big picture. And everybody if they are
not getting the decision they want they are going to the next level. There is no
acceptance that a decision is a decision. Because no decisions are being made
with a big picture in mind so it ’5 hard to explain to people that I made decision X
because it fits into this big plan, because there is no big plan out there. "
In this regard, the misuse of political actors to trump or short-circuit natural resources
decision making processes contributes to the skepticism resource professionals have for
the perceived intrusion of politics to an otherwise science-govemed enterprise.

The concept of politics within the trust theme is not exclusively represented by
the notion of the profession’s mistrust of politicians. In some respects, the profession
may misunderstand its firndamental role in public decision making. Randall expressed
this idea by stating:

“We are the trusted advisors on certain specialties some times. If everything

works perfectly, that ’s the most you can expect, Nobody is going to give really

important decisions to the biologist to make unless you going to talk about
opening the deer season —you can make that decision — who cares? It 's not
really important. The best you can hope for is to be the trusted advisor and
occasionally you can say is “will the fish live, or will they die is this biologically

adequate or not. We know it's politically doable, but is it biologically adequate?

40

)!

You say with some certainty, “Y es, no. or I don’t know. That’s a culmination of
a life of work. We should be training every one of our biologist for that moment.
If conservation professionals are unprepared for or insensitive to these moments, it can
undermine the stature of the profession in the eyes of the political leadership. As Randall
suggested, the role of the conservation professional is to be the trusted advisor, but if, as
the previous theme has suggested the profession is not prepared to provide the right
advice or articulate it in a meaningful way the capacity of the field to be trusted can be
limited.
Responsive to Global Society
While the role of the natural resources professional may require service as an
advisor to political entities, some participants indicated that the role of the profession
may be to serve as advisor but that does not preclude the profession from serving the role
as opinion leader as well. Randall emphatically shared his sentiment on this by stating:
“And what we say is, “Here ’5 our best advice, this is the world that [state name]
will be experiencing in 50 years. Your grandchildren in their lifetime, and their
children, your great-grandchildren, will be experiencing this [state name] in 50
years. Now if you like that, then be happy because we are right on track. If you
don ’t like that then we are going to have to change the incentive and disincentives
that drive the trajectory. Here are some things that you could do, but you are
going to need the political will to do them. We are not decision makers we are
just your trusted advisors, but what we are telling you is that this is most likely the
[state name] that your children and grandchildren will experience. We 're afraid

to do that right now, we're afraid that we are too uncertain, we 're afraid that

41

nobody has asked us, we 're afraid that people don ’t want to hear it. Politicians
sure as hell don 't want to hear it because what it says is that our fundamental
core system won ’t stand that kind of change and it will be politically diflicult to
change it. Politicians don ’t want to hear that, they want to hear easy solutions,
they don ’t want to hear talk about hard solutions. They sure don 't want to hear
about one of their agencies presenting solutions that force them to make hard
decisions or comment in the public forum on very, very hard decisions.
Sportsmen don ’t want to hear it because it means our agencies are starting to put
their focus on the broad landscape and on all the resources and all the people
rather than sportsmen owning their own little agency. 50 there are a lot of
reasons why fish and wildlife agencies don’t want to do this. But I think it 's
absolutely crucial that they do, do it. Because I think it ’5 central to helping
people understand that we are moving toward a world that isn ’t necessarily our
objective but it will be the result of the current incentives and disincentives. It is
our trajectory and it will be our reality unless it gets changed. ”
Stakeholders
While it is said among natural resources professionals that every citizen of the
world has a stake in vibrant natural resources, for the purposes of this study,
‘stakeholders’ generally refer to active and engaged groups of citizens who are avid
participants in hunting, fishing, and outdoor recreation and the organizations that have
been developed around those activities. Effecting solutions to concerns raised by
stakeholders is not necessarily an uncomplicated enterprise; there are times when

political consideration or agency ambivalence creates stagnancy in the advancement of a

42

policy issue. While there are valid reasons for viewing the use of the courts by activist
stakeholders as a threatening instrument of blunt force “we are going to continue to get
the federal courts to make interpretations that turn what we believe what was Congress’
original intent on its head, and they also continue to narrow the flexibility that the law
gave the federal executive branch agencies so that there isn’t a lot of discretion by natural
resource managers” said Dennis. Another perspective views the use of the courts by
stakeholder organizations as a means by which otherwise reluctant political actors or
conservation professionals are compelled to remain faithfirl to their charge; “you either
change the law or you just kind of edge it or ignore it, and that’s what lawsuits do, they
bring us back to a respect for the fundamental law as it is and then force us, if we don‘t
like it, then let's try to mobilize the political horsepower to change it in a more positive
way. I think lawsuits ensure fidelity to the original intent” pointed out. The stakeholder
interface is a subject rife with the implications about concept of preserving trust by
ensuring performance on prime issues among the conservation field and as an arena to
foment distrust among stakeholder organizations who use such tactics as a means by
which engagement on issues can be sidestepped.

Collaborative Process

Building upon that concept, the capacity to which the profession can employ and
engage in meaningfirl collaborative processes can provide a means to negotiate and
assuage fundamental differences. Several participants suggested that the current
professional class of conservation managers are relatively ineffective at structuring and
entering into meaningful collaborative processes, as a consequence the opportunities to

build trusting relationships with stakeholders, the political class, and demonstrate a

43

responsiveness to global society are more or less limited. In many respects, this sub-
theme is indicative of many of the other ideas that have been explored within the
category, which is to say reconciling the way in which the profession relates to other
disciplines and the public on whom they depend to perform their work. Randall reflected
this by stating:

“Most biologists are trained to believe that lawyers are fundamentally bad. They
usually work for the bad guys, and reinforce the status quo against hard working,
salt-of-the-earth biologists that are trying to change things for the better. That '5
just the common sense way that biologists look at lawyers. Most lawyers look at
biologists as some kind of people who are out of sync with reality. The whole
world is about the political and legal way of compromise and these biologists are
a bunch of crusaders who are tilting at windmills while nature goes away and
they are so unrealistic that they are almost inconsequential in the big picture of
things. Neither caricature is correct. We can change those caricatures by
celebrating successes in our case examples of where the two professions help
facilitate change. Help change happen. Biologists know that change has to
happen and that all things have to adapt. Society has a hard time adapting. The
law helps us to adapt. Now the law without good science doesn 't adapt properly
and science without the legal and political process doesn ’t work very well either
you are just talking into the dark and sitting on the status quo. What we need to
do is start out with some training at the root levels to give a respect to the role
that the two professions help in making policy that helpfacilitate change as we

learn more as the situation changes.

44

Funding

While the funding theme emerged with in only 11.7% of the responses offered
and by only 3 of the participants (Table 5), it was referenced tangentially and inferred in
a number of responses coded primarily to other themes. In that regard it was referenced
by participants as being both a significant challenge that must be confronted by the
natural resources profession and in some respects serves as an indicator of how effective
the field has been or is at connecting its work in a meaningful way with the public,
stakeholders, and policy makers. Current conservation funding models cause
conservation agencies to be beholden to a declining segment of the conservation arena as
noted by Randall:

If we don't make the jump to a new basis for fundamental conservation funding,
we 're done. In twenty-five years we will barely able to use sportsmen ’s fees to
cover sportsmen 's services. No more, if we don ’t substitute in some component of
dedicated funds, general funds, sales tax money, other strategies and make that
jump while there is still time we will see the state agencies of this country
essentially fade into insignificance. They will be managing small groups of
hunter’s more or less in kind of a sportsman ’s services service mechanism and
that will be it. "

Declining sources of funding and a declining user base underscore the phenomenon
described in other themes as well and exemplified in Susan’s observation:
“Let 's just call it a passive use of our resources and there is a complete lack of
understanding how the active use of our resources fuels that long term resource

protection. And so when you have people who are passively recreating or

45

passively managing or passively doing these things you ’re losing all the benefits
that the dollars come back in to fund natural resources. And passive recreation a
lot of it doesn ’t inspire the passion in the individual person like active recreation

does. ”
Susan’s statement speaks to how natural resources conservation is funded: which is
primarily through the sale of hunting and fishing licenses. If use patterns suggest move
away from the consumptive forms of recreation for which licenses are sold, there means
by which conservation is funded is similarly affected. She also suggests that different
forms of recreation connote different connections with nature and instill different
stewardship values. In this way, Susan’s comment significantly Shows the linkage
between several sub-themes.
Evaluating the Overview Course

The second major Objective of the interviews was to evaluate the overview course
presented in Section II. The questions in this section were designed at establishing the
following: identifying what topics are most important for a conservation law and policy
program, determining whether or not the course adequately covered the range of
conservation issues confronted by the profession, and determining whether or not there
were critical issues, knowledge, or skills that were overlooked.

For the evaluation of the overview course, two major themes emerged: curriculum
and skills (Table 6).

Curriculum

Not surprisingly, more comments were coded in this theme than any other theme,

representing 82.2% of all responses with all 8 participants providing comments about

46

curricular content. The responses represent the areas the participants believed needed
particular attention from the curriculum.
Interdisciplinary
The Program and the course were both designed to deliver knowledge and skills
in a manner that was interdisciplinary. Reconciling the pedagogical differences in
teaching the law and policy with natural science, it was clear from the interviews that
disciplines have some difficulty in understanding why the other works the way they do
but perhaps more fundamentally how the other works the way they do. Susan noted this
by stating:
“So you ’re. talking about people that probably have never been exposed to just the
bare minimum of science like changing moles to grams or something. Not actually
interpreting data. I think it ’5 going to be very important, and I don ’t know how
you fit this into a curriculum, but to talk to the difllzrent layers of resource
management, at the same time, or on the same issue. So say you ’re going to pick
an issue like trout management. I think it’s important that you have an NGO
person, a state and federal agency person, an actual scientist -- a university
person; all come in and talk about the same issue and have the class explain what
the dijference is in their interpretations and their roles. Because that ’s critical to
understanding the big picture and you have to make a curriculum that guides
them towards understanding those differences not just telling them there is a
difference.
This notion is not without limitation, however, as Paul proposes, “It sounds like a good

idea to get these two people together finding a curriculum that isn’t completely remedial

47

one or the other while you are trying to educate the lawyers on biology and what are the
people who already know that doing?” Relating basic knowledge from one discipline to
the other without misusing the time of the other is a point well taken. The intention for
the course and the expectation of the faculty teaching the course will be that there is
particular value in getting the students with expertise in one discipline to effect the
knowledge transfer to the student fi'om the other discipline and vice-versa. Therefore, the
lesson of working across discipline is one that is employed within the dynamic of the
classroom rather than being simply “taught” as a technique.

There are practical reasons for doing so as well. As Paul notes here, the attorneys
trying a conservation case are going to rely on their client as expert:

“I don ’t think just from our practice perspective, you are going to need to be able

to understand the issues but you are going to need to rely on the client to explain

the more diflicult issues. For example, the [animal name] delisting issue, we are

going to have to rely on the biologists and [agency] because we are not

biologists, we are not going to be able to answer all the questions that make all

the technical or science arguments.
The point of the course is not to obviate the need for expert witness or expertise, but to
more effectively and efficiently allow those with the technical expertise to be able to
communicate meaningful information to those with a different expertise in a meaningful
and significant way.

Alternative Dispute Resolution

Building upon the collaborative process sub-theme, alternative dispute resolution

emerged as a sub-theme in the curriculum category; a similar concept appears in the skills

48

theme that is discussed later. Several participants articulated the belief that alternative
dispute resolution, mediations, and other forms of formal negotiation will become
increasingly significant in resolving conflicting points of View in conservation. Kevin
referenced this by stating:
“I think ADR-the alternative dispute resolution piece towards the end of the
course is interesting. The more you look at the field of law in general, court
dockets are tied up and you need to think about the fallout of having a judge make
a decision on these issues, and you kind of start to cringe when you think about it.
I think ADR is a really creative, innovative way we see the field of law trending
towards. Because you can have a selective tribunal of scientific experts and
administrative law and you can have a three panel arbitration panel and you can
have parties go back and forth and best decide how to solve problems. ”
Overview of Science and Conservation Management
Participants believed that the overview course needed to effectively provide a
primer on the science and how science is employed in the course of performing natural
resources conservation. “1 think it (the curriculum) needs to address, obviously, natural
resource science and management, active management. I think it needs to address
applying science and social science to natural resources management decisions. Because
the science can tell you one thing but its society that dictates how you implement it and
that is where most of the battle is” said Susan. Others suggested that presenting the
management context for the science of conservation management would be particularly

useful for those entering the program from undergraduate or other programs that were not

based on natural science. Kevin suggested “basic survey or background in the scientific

49

expertise ...There are things that most kids attending law school don’t have a background
in. The science behind that goes into fisheries and wildlife decisions, land use decisions
or whatever.” Dennis cautioned, however, that an objective of the program should be to
teach awareness and appreciation:

“I don ’t know that attorneys need to be biologists any more than biologists need

to be attorneys. I think some type of exposure particularly for those attorneys

who are interested in specializing in natural resources law, some type of exposure

to conservation principles, and management principles, during their educational

training would certainly be helpful. ”

Defining Conservation and the Differences Between Conservation Law and

Environmental Law

As I discussed in Section I, there is ample need to better probe the question of
defining conservation law and distinguishing it as a field that is discrete from
environmental law. Understanding conservation as an ethic that is fimdamentally
different, though certainly related to the environmental ethic is an important exercise for
the program and probing that definition is an important task for the curriculum as
suggested by Paul:

“Putting a finer point and a gross over generalization, you sometimes think that

the environmental side is a no. No, don ’t do it, don ’t touch it, don’t change it.

And that ’s not what people who think of themselves as outdoorsman, hunters,

fishers, resource managers, I mean they are managing it for a purpose not just to

have it sit there. I think that would be a useful thing for the lawyers to

understand. If people are thinking about it in a different way here. This is not

50

environmental law this is a difi"erent thing here. People have a different ethic and
a diflerent viewpoint here on the natural resources. It is a gross over
generalization. ”
While the definition of conservation law has not yet been the subject of debate among
scholars, legal practitioners have yet to consider conservation law as a distinct practice
area. Cathy reflects on this stating:
If you look at the [state name] Bar and all the different committees they have
and I don ’t recall there is a conservation committee but there is an environmental
committee. To draw people here you want clean air, clean water, you want
conservation outdoor opportunities, hunting opportunities; and it ’5 just the right
thing to do to manage the game in this state. I think there should be opportunities
where people can get that knowledge. I don ’t know how to do that because I
venture there are not a lot of people who. wake up and decide that they want to
study conservation law. There are people who wake up and decide they want to
be an environmental attorney. ”
North American Model
In Section I, I described the North American Model as being an efficient way of
summarizing the myriad activities that can be defined as being derivative or supportive of
natural resources conservation in the United States. Many of the participants believed
that specifically and explicitly teaching the North American Model was an essential
component to an effective course and a complete program. Dennis exemplifies this

sentiment by stating:

51

“The other thing I think there needs to be is some type of exposure of The North
American Model of Fish and Wildlife Management or North American Model of
Wildlife Management. You would assume that some of that would come through
in course work that discusses the evolution of wildlife law in the United States and
its origins in English Common Law. T here is not, as I understand it, not a lot of
exposure of the North American Model even in conservation curricula in
universities. So I think we need to highlight the predicate for conservation in this
country being on the principles that are found in the North American Model. ”
As Dennis notes, the North American Model is not an aspect of the conservation arena
that is featured in many curricula, in this respect including the Model in the course and
featuring it within the Program, is a distinguishing feature of the curriculum’s design.
F ederal/State A uthori ties
Another essential curricular element identified by the participants was a
discussion that situated the various federal and state authorities for the management of
the natural resources. Understanding the fundamental role of the state and the
fundamental role of the federal government was considered an important and instructive
component to the course. Dennis reflects:
“Our basis of our system of conservation in the United States is preeminent in
importance that in the fact, unless Congress has given federal agencies certain
conservation responsibilities, that the states in exercising their appropriate
authority either have the principle, either salutatory or constitutional,
responsibility for managing fish and wildlife within their borders for their

citizens. You know that 's not a delegated authority. The big difference between

fish and wildlife conservation and a lot of the other federal environmental laws is
that the states exercise fundamental authority for fish and wildlife management
except where Congress has given federal agencies certain responsibilities with
The Clean Water Act, The Clean Air Act and other federal environmental laws
they have a delegated authority opportunity to the states suggesting that the
authority for management of those particular resources derives from the federal
government and that is the big difference or distinction that the course needs to
highlight and firmly ground in the students there. I think all the topical areas you
have identified are very germane and important, but I think, but most
fundamentally they need to start off understanding the relationship that exists
between the states and the fiederal government agencies. ”

Tribal Considerations

Not only did the participants articulate a need to address relationships among state

and federal governments, many also identified a need to better understand and address

relationships among sovereign tribal governments and the shared resource management

authority that is preserved by treaty among the federal and tribal governments. The

assertion of tribal rights to allocate natural resources has changed the context in which

natural resources management can be practiced. “I like the tribal issues, particularly in

Michigan, as we have the treaties and the agreements for fishing and for hunting” stated

Conservation Ethics

Ethics and ethical considerations emerged strongly as a curriculum sub-theme.

One participant Viewed a discussion of ethics as an important component of the

53

foundation for the rest of the course. Cathy suggests that “you give the large overview
and you talk about the context in which conservation law is practiced and the philosophy
and ethics. That I think is extremely important because again it sets the stage and that
foundation.” Susan suggested that discussing the philosophy and ethics of conservation
was important however,
“it ’5 equally important for you to somehow get a pulse of the philosophies and
ethics of the students coming into this program because it goes back to that
discussion of core values. What you grow up with. . . and you ask people
questions, and you ask them questions, and you ask them questions, and you get to
the point where they can 't tell you why they feel that way about something you 've
hit their core value. And something about their upbringing what grew them into
the person they are today has formed that core value and with those core values
are going to come philosophies and ethics. ”
Compelling discussions about personal and professional ethics was viewed by Randall as
an essential exercise when he stated:
“What's not okay, what '5 out of bounds in terms of the ethics of our profession.
What 's in bounds, what 's out of bounds? And it not just intuitive to people what's
in and out of bounds, in the legal profession. To legal and policy people, I
guarantee you its not intuitive to know what is in and out of bounds. Nor in the
biological profession, there are a hell of a lot of biologists who don ’t know what

is in and out of bounds. ”

Mid-Career Development

54

Perhaps one of the most surprising components of the interviews was a discussion

that emerged in one of the early interviews about creating opportunities for current

professionals, not simply graduate and law students seeking to develop a specialized skill

in this area. One benefit of offering a continued learning opportunity is that you are able

to embed and institutionalize this knowledge much quicker than waiting for law and

graduate students of the program to ascend to leadership positions. Randall

conceptualized this by stating:

“Eventually you are going to get someone who wants to do a PhD in it; wants to
change their whole life. That won ’t be 90% of the people, that won ’t be 90% of
your value. 90% of your people will be people who are just a little more aware,
got some mid career training, can see where this could really help, are ready to
be your expert witnesses; they are trained not to be afraid, they are trained to
know what to expect in discovery and cross examination. Just give them practice
getting them ready for a legislative hearing. Think what it would mean if you had
twenty or thirty people in your agency that you could absolutely take to the bank.
You bring them into a hearing and they say all the right things and they aren ’t
going to say all the bone head stupid things. They are going to be respectful, they
are going to be on target, they are going to know what their ethical limits arefor
describing uncertainty and you know you are going to have an ejfective witness

!

every single time; all twenty of them. ’ “I think this is sort of a prime casefor
continued learning. I think that a lot of people you described sort of ended up in

resource management law as an accident or maybe they really like it but they

never thought that they would be doing it. ”

55

Discussing the development of the mid-career program as an appendage to the program
from graduate and law students speaks to the sense of urgency current professionals have
for imparting these essential skills and knowledge. As an alternative to the overview
course as proposed, the developers could consider offering the course on weekends to
accommodate working professionals or disaggregate the components of the class into
mini-courses available for continuing education credits. There is no requirement,
however, that a turiversity be the sole source of this information. Many government
agencies have training and development for staff on a host of topics, many agencies
require some training for all new employees. The essential elements of the course could
be adapted to conform to a training offered by a government agency that could
specifically target policy focused employees. A third option for providing mid-career
training could come from stakeholder organizations. To the extent that many of the
participants who work for non-govemmental organizations, also identified a mid-career
option in their responses indicates that there is interest in the non-govemment
organizations (N GO) community to develop these Skills among their ranks as well,
consequently, these skills could be transferred by NGO’S to their members to add a class
of volunteers and activists to the professional for whom the class was initially conceived.

Skills

The final theme that emerged in the evaluation component of the interview
pertained to the particular skills that the course needs to provide related to development
opportunities. In 17.8% of the comments received (Table 3) 5 participants identified a
suite of skills that would serve to more effectively address the challenges they articulated

in the first portion of the interview or to perfect and employ the knowledge they

56

described within the context of the curriculum. The sub-themes that emerged under this
theme explore different aspects of many concepts explored by other themes and sub-
themes, which is not surprising considering that this theme addresses specific tools the
field should employ in response to or in support of some of the themes and sub-themes
described earlier.

Advocacy Techniques: Legal Interpretation

Randall previously discussed the role of the professional as “trusted advisor,” who
is capable of answering discrete questions about a policies’ impact the natural resources.
Randall suggests in the following statement that the role of the professional may also
include adopting the role of professional advocate capable of inciting important, if
difficult discussions “most state agencies aren’t going to initiate a lawsuit, even if they
believe that one is justified. They politically aren’t ever going to initiate a lawsuit
because they work fundamentally at the pleasure of politicians who don’t want these
lawsuits.” The implication here is that the unwillingness of some conservation
professionals to use all of the tools available to them may undermine their overall
effectiveness. Some responses explored in our discussion of other sub-themes seems to
suggest that as a field, natural resources conservation professionals are not necessarily
taught to be entrepreneurial in their use of the judicial system or legislative options,
limiting their potential impact as effective advocates. Comments from the participants
seem to suggest that emphasizing and refining the use of advocacy tools is an important
consideration.

Art of Compromise

57

The skill set reflected in this sub-theme refers to some of the challenges identified
in the Current Challenges in Conservation Law and Policy section of the interviews and
speaks to specific curricular comments discussed in that section. Randall suggested,
when discussing the need to develop the essential tools of effective negotiation that
“increasingly these problems are not going to get solved in court. Increasingly these
problems are going to get solved at the negotiating table but you need lawyers and you
need biologists at the negotiating table. So the question comes down to what do we know
about the skills of alternative dispute resolution and collaboration that are going to inform
the legal profession and the biological profession as comfortable ways of making
progress.” Providing particular training and development in this skill area may solve
some of the complicating elements that prevent the development of trusting relationships
among the conservation professionals and other policy making entities.

Communications

Some participants suggested that the capacity to effect positive conservation
policies depends in part on the ability of conservation policy professionals to be effective
and forceful advocates and to make sensitive and appropriate use of different
communications techniques to articulate needs in a way that can be understood and acted
upon by necessary agents. The perceived disconnect between the profession, the public,
policy makers, and stakeholders, could all be ameliorated, if not solved, by more
effective use of communications techniques. The effective use of communications tools
also contributes to the general sense of value delivered by the profession as Randall

recognized in his comment:

58

“We have to have a communication strategy that has both depth and breadth.

The depth question is how do you train the lawyers to understand natural
resource management and how do you train natural resource managers to
understand law? The breadth question is why is obeying the law really important
in terms of determining of what the future of [state name] will be for our
children? And talking about the role that lawyers play, and the teamwork of
lawyers and natural resource professionals; the teamwork that DNR ’s and NGO 's
play; how change gets made. A lot of times change gets made when we finally
have a policy that just won ’t work anymore. But we try to avoid it, and the
lawsuits, the judicial rulings basically say this isn ’t working anymore and now we
have to go back and change the law. Because simply ignoring the law or
violating the law systematically is not working very well. The way that you come

to that realization is by having conversations about it in the media.

This seems to suggest that the effective use of the media plays an important role in

softening ground for policy change and creating the decision space needed by

conservation policy makers to get work done.

CONCLUSIONS

The emergent themes from the first component of the interviews (Current

Challenges in Conservation Law and Policy) spoke to an overall perception that training

or educational opportunities for conservation professionals were not meeting all of the

areas of need that current practitioners perceived. Many of the challenges identified in

this interview segment implied that a mastery of certain skills or an awareness of certain

knowledge would necessarily yield a better result or achieve greater perceived success.

59

The themes that emerged from the second component of the interviews
(Evaluating the Overview Course) appear to validate or support the direction of the
overview course in addressing some of the skills and knowledge gaps identified in the
first phase of the interviews. When the participants were asked for a response to “From
your perspective, are there critical elements that have been overlooked in this overview
course?” none offered any particular omissions. Further, in response to “Does the
overview course adequately cover the range of contemporary conservation issues you
confront on a daily basis?” respondents generally indicated that it did. One question that
would have been particularly instructive, but was not asked of the participants would
have been to probe the extent to which they believed the overview course would
contribute to the elimination of the challenges they identified earlier in the interview.
While it can be inferred from the discussion of the challenges and the ensuing discussion
about the course that this is the case, it is a weakness that the question was not explicitly
considered and posed during the interviews.

Two areas of concern were raised by the participants. First, several participants
questioned the need for including a discussion of legal techniques (e.g., client
management) when law students would otherwise be exposed to those skills in other
components of their legal training. At the time of the interview I did not explain that the
purpose of including those skills was to ensure that the students had some exposure to
those skills prior to entering their extemship, in which those practical legal competencies
would be particularly useful. Had I done so, it may have obviated the concern. A second
concern that was raised pertained to the pacing of the course and the amount material that

it attempts to cover. Some participants suggested disaggregating the course into distinct

60

parts rather than have a single course cover all of the material in one semester. As the
course is taught, it will possible to evaluate the need for doing so.

Susan touched particularly on the topic of continued evaluation of the course
stating “I think if you are going to launch this program you really have to do some
intensive pre-evaluation of the people going in and some intensive post evaluation of the
people going in and make sure that you are getting your desired outcome.”
lnstitutionalizing a program review component will be an essential and distinguishing
feature of this program. The challenges perceived by the field today may not be the
challenges the field confronts in 10 years time. The training that is offered to nascent
conservation law and policy professionals should be nimble so as to continually provide
topical and contemporary training. One method to measure the effectiveness of the
program and to ensure that it remains vibrant is to continually survey graduates of the
program to scope how well the skills and training they received within the program
translate into a practical setting. Evaluating the effectiveness of the program is another
challenge and a separate question altogether. Pelfrey and Pelfrey (2009) proposed an
evaluation program for a Master’s program in the nascent field of Homeland Security,
one that changes and evolves quickly as national security needs, intelligence, and
technology change. For programs and disciplines that are dependent upon relevance in a
practical setting, instituting an evaluation technique that sufficiently measures a
curriculum’s effectiveness so that curricular revisions may be employed could have an
important application in the conservation law and policy program as well. The
institutionalization has allowed the Homeland Security to mature quickly because it has

instituted rigorous and constant evaluation (Pelfrey and Pelfrey 2009). Further, the

61

interdisciplinary nature of the Homeland Security (attracting students with degrees in
medicine, veterinary medicine, law, and a host of other advanced degrees (Pelfrey and
Pelfrey 2009) is similar to the many backgrounds that prospective students may bring to a
conservation law and policy program. The need to keep the program viable and on the
leading edge of where practitioners see as the skills and competencies needed for future
practitioners should be intentionally and thoughtfully explored and executed.

In considering future evaluation, it may be valuable to consider the qualitative
measurements that could be used to evaluate the effectiveness of the program.
Consistently and routinely interviewing graduates to determine how often and how
important the skills and knowledge taught in the program are used with success by them,
surveying and interviewing the colleagues and employers of program graduates to
determine what kind of impact the program is having on the field. It may also be
appropriate to consider quantitative measurements for program success, for example
evaluating the number of legal challenges that successfully overturn conservation laws
and policies or determining whether instances of legal challenge to conservation policies
are on the decline.

This evaluation and project are also instructive for the development of courses
and curricula that are not necessarily germane to conservation but to any discipline that
depends in part upon graduating students with practice ready skills that can immediately
applied to pressing issues. The course discussed in this project was developed first and
then evaluated, however the other designers may agree with my belief that while the
product we developed appears to track closely with what the field believes are core

knowledge and skills, conducting a focus group to probe some of those issues before

beginning the development of the course may have been instructive, and should be
preferred.

Certainly few, if any, other courses have undergone a development and validation
process like this course has, and while not necessarily practical in every curriculum
development setting, this project does show that such a method is feasible and can
strengthen the content of the curriculum. Future evaluation may be able to Show if this

method for course development yields better, more employable graduates.

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Table 4. Description of major themes that emerged from participant interviews including

example quotation.

 

Theme

Description

Example Quotation

 

Curriculum

Knowledge

Essential curricular
elements that should be
represented in the overview
course.

Assessment of the
knowledge base for the
various actors involved in
conservation policy making
including science-based
practitioners, members of
the judiciary, political
actors, and the public.

“A basic survey or
background in the scientific
expertise that you need to
know. There are things that
most kids attending law
school don’t have a
background in. The science
behind that goes into
fisheries and wildlife
decisions, land use
decisions or whatever. .
“And most judges, and most
prosecutors, can understand
the penal code, they can
understand the traffic code,
but the nuances of some of
the language in
conservation law and
environmental law, they
don ’t see it that often, they
don’t want to see it, and
they don’t want to deal with
it. And so that in itself sets
the path for very bad
decisions that come out.
And decisions where I don 't
think it’s again the intent of
a judge or a prosecutor to
make a bad decision, I think
that they do the best they

,9

can.

I)

 

64

Table 4 continued

 

Skill

Trust/Distrust

Funding

Beyond establishing
competency, the
development of different
skills or tools that policy
practitioners should have
exposure to.

Participant perception of
trust among conservation
policy actors, how trust or
distrust is manifest in the
field-whether the field of
conservation professionals
are trusted by the public and
whether conservation
professionals trust other
inputs into the conservation
policy making process.

Perception that funding for
conservation is a challenge
to be confronted by the
conservation profession.

"Increasingly these
problems are not going to
get solved in court.
Increasingly these problems
are going to get solved at
the negotiating table but
you need lawyers and you
need biologist at the
negotiating table. So the
question comes down to
what do we know about the
skills of alternative
resolution and
collaboration that are going
to inform the legal
profession and the
biological profession as
comfortable ways of making
progress. ”

“People get frustrated with
biologists because they
basically don ’t want to
compromise because we
come from a culture that
makes it difiicult to
compromise because
resource lives or dies. We
have a certain amount of
uncertainty and we
understand that uncertainty
is a potential course of risk
that we might miscalculate
and we might create and
extinction when we didn ’t
intend to. Politicians and
lawyers generally don’t
understand that at all
“The first thing that comes
to mind has to do with
appropriate fundingfor
resource managers to be
able to do their job and that
derives from , in Michigan
that funding comes from
users; hunters and anglers

 

65

Table 4 continued

 

 

and from other folks that
use the natural resources in
Michigan. Those numbers
are declining, so from a
broader context I would
have to say the issue is
declining participants,
declining users of
recreational uses of natural
resources in a traditional
sense that funds those
programs, hunters and
anglers. "

 

 

 

Table 5: Number (%) of coded responses (out of 34) for participants that were assigned

to each of the major themes identified in Current Conservation Policy Issues.

Theme n % # of participants referencing theme
Knowledge 23 67.6 8
Trust/Distrust 7 20.5 5
Funding 4 11.7 3

Table 6: Number (%) of coded responses (out of 73) for participants that were assigned

to each of the major themes identified in Evaluation of Overview Course.

Theme n % # of participants referencing theme
Curriculum 60 82.2 8
Skill 13 17.8 5

66

 

APPENDIX A

List of Michigan State University College of Law Courses

The list Of MSU College of Law Courses applicable as electives to the Conservation Law
and Policy Program:

Air Pollution Law and Policy
Bioethics and the Law

Contract Drafting

Corporate Law and Policy

Energy Law and Policy
Environmental Law

International Environmental Law
Land Use Planning

Legislation

Natural Resources Law

Negotiation

Regulatory and Administrative State
Water Law

Wildlife Law

67

APPENDIX B

List of Michigan State University Courses
The list of MSU courses applicable as electives in the Conservation Law and Policy
Program:
Integrated Risk Assessment of Environmental Hazards
Physical, Chemical, and Biological Processes of the Environment
Human Systems and the Environment
Human and Ecological Health Assessment and Management
Environmental Applications and Analysis
Forest Ecology
Population and Community Ecology
Ecosystem Ecology
Advanced Environmental and Resource Economics
The Economics of Environmental Resources
Advanced Natural Resource Economics
Information Economics and Institutions in Natural Resources
Economics of Renewable Resources
Recreation and Tourism Economics
Economics of Planning and Development
Landscape Ecology
Concepts and Issues in Flaming and Development
Urban Land Management

Legal, Financial, Institutional Frameworks in Watershed Management

68

Law of Environmental Regulation

Parks and Protected Areas Policy and Management

Leadership and Policy Process in Agriculture and Natural Resources
Policy Evaluation

Public Policy

Policy Development and Administration

Cost-Benefit Analysis in Public Policy

Incentives and Public Policy

Planning and Development Law

69

APPENDIX C

Draft Statement of Need for Conservation Law Program

Statement of Need for a Conservation Law Program

The Conservation Law Program consists of four components:

3.

. A balanced conservation law curriculum that specializes a law student in the

conservation/natural resources field, and leads to a J .D. degree.

A companion interdisciplinary component of course work and curriculum in fish,
wildlife, habitat and natural resource science, management and policy that
grounds a law student in the actual issues that conservation legislation and
regulation attempt to address, interpret, regulate and manage. This

interdisciplinary component would lead to a joint M.S. or Ph.D. degree.

A law clinic where students would work on contemporary legal issues for clients
such as land owners, NGO’S, state and federal regulatory agencies, etc. This
would include research, preparation of advisory memos, pleadings and court

appearances, etc. all under the supervision of practicing attorneys.

A supervised internship/extemship program where students would spend a full
semester or several Stunmers working for state and federal natural resource

agencies to better grasp how regulatory and management agencies firnction, and

70

the contemporary challenges that exist in management of our public lands, fish

and wildlife.

Aldo Leopold is regarded as the leader of the development of science underlying natural
resource management. It has been an accepted precedent since the 1920-30’5 when
Leopold was most active, that science was the only basis for sound resource
management. That precedent prevailed through World War II, and well into the decade
of 1960’s, but growing citizen activism began to add a “public input” component in the
decision making process on how our natural resources were managed. Today the concept

that science underlies natural resource management has become an unfortunate myth!

One of the political by-products of the Vietnam War (1964-1975) was fierce citizen
activism and involvement that demanded a voice in state and federal policy decisions at
all levels, and especially on issues that touched the soul of America, and these included
the management of our public lands, fish and wildlife. Rachel Carson’s book Silent
Spring (1962) sparked a nerve in the nation’s conscience, as did President John F.
Kennedy’s call to the country to forge “new frontiers.” From this period, a new zeal was
generated to protect the environment, and public lands as wilderness, completely
unimpaired by mankind, which Wallace Stegner calls the highest refinement of the
national park idea since the turn of the century. NGO organizations formed earlier in the
century such as the Wilderness Society, Sierra Club, Audubon Society, National Wildlife
Federation, etc. became re—energized, spawning the creation of new companion
organizations such as American Rivers, Trust for Public Lands, the World Wildlife Fund,

Greenpeace, Friends of the Earth, Earth Watch, the Ocean Conservancy, etc. Major
71

national legislation followed in the 1960’s and ‘70’s that included the Wilderness Act of
1964 and the National Wilderness Preservation System, the National Trails System,
National Wild and Scenic River Systems, the Land and Water Conservation Act of 1964,
the initial 1966 Endangered Species Act (later modified and expanded), and the National
Environmental Policy Act of 1970. The Federal Water Quality Control Act of 1965 and
Clean Water Restoration Act of 1966 followed, together with a host of laws to protect the
environment from toxic wastes and industrially polluted air and water. The era of
preservationist environmentalism and a total revolution within America’s conservationist

consciousness had begun.

Legislation at the state level followed the national agenda. The basis for many of the new
laws was public emotion rather than science, promoted and channeled by special interest
groups and their lobbyists, forcing the management decisions of resource professionals to
be marginalized and compromised. The interpretation and enforcement of the new laws
and regulations became fertile soil for citizen activists and their attorneys, and today
these players occupy a major and decisive role in natural resource management and
decision making. New NGO organizations were created primarily to sponsor litigation,
and included Greenpeace; Environmental Defense Fund; Friends of the Earth; Fri ends of
the Animals; Fund for Animals (HSUS); Center for Biological Diversity; WildEarth
Guardians; Defenders of Wildlife; Natural Resources Defense Council; Public
Employees for Environmental Responsibility; and the Animal Protection Institute. Today
resource management is unfortunately governed 10% by science, 40-50% by public

activists, and 30-40% by judges and litigation attorneys.

72

Just one example of the role judges and litigation attorneys play in resource management
is the delisting of wolves in the Great Lakes and in Montana/Wyoming. The US. Fish
and Wildlife Service (USFWS) delisted wolf populations in both geographic regions,
and the states prepared management action plans for the species. The delisting by the
USFWS was challenged, and two federal district court judges in Missoula, Montana, and
Washington, DC, overturned the decision of the USFWS, ordered the species re-Iisted,
and the state’s management action plans were suspended. The USFWS is struggling to
re—write its delisting determination as published to address the two judges’ findings and
ruling, and more litigation is certain to follow. This is a contemporary illustration of the
increasing role judges and litigants (all without any professional knowledge or
appreciation of resource management) are playing in resource management today. The
drain from litigation on state and federal resource management budgets away fiom
science-based management operation is crippling the ability of these agencies to

effectively fimction.

The conservation law program contemplated would train attorneys who are well
grounded and balanced in the essentials of conservation law, and the underlying science
and policy of resource management, with some appreciation of resource agency
operations. These well-trained attorneys could then more effectively defend the decisions
of our professional managers and their agencies, staff legislative and agency committees
drafting laws and regulations, and work within the judicial system to improve judges’
appreciation of the realities and science underlying resource management. Over time. as

the synergy of this law program gets duplicated in other parts of the country, a cadre of

73

attorneys will be developed to return resource management decisions to the professionals

trained in the science of management.

Conservation law programs have been developed in a number of law schools across the
country following the legislation and litigation of the last quarter century. However, a
careful examination of the cuniculurn indicates that those programs are unbalanced, and
skewed to primarily regional or national issues. For example, the University of New
Mexico Law School focuses on Indian law, water law, native rights, and Spanish land
grant law. The University of Colorado’s curriculum focuses on energy and mining law,
toxic and hazardous waste law, while the University of Vermont’s curriculum is

primarily a national environmental law and regulation focus.

A truly balanced conservation and natural resource law cimiculum would include the

following courses:

(INSERT)

A few years ago, research undertaken by the Boone and Crockett Club identified a
disturbing culture divide between senior and retiring state and federal resource managers,
and the mid-level career professionals following them by some 15-20 years. The seniors
were primarily agrarian based, having farm and ranch backgrounds with a childhood
connection to the land and its fish and wildlife, while the mid-career professionals
following had primarily urban backgrounds. The senior’s resource decision making skills

were much more intuitive than the urban professionals following them.

74

Most law students today come from urban based childhoods, with no relationship to the
land. The study of law is an academic and intellectual pursuit. To better appreciate and
understand conservation law’s application to the underlying land, fish and wildlife which
the law governs, a student really needs to understand the science and policy of underlying
land, fish and wildlife management, and the inter-relationship and inter—dependency of an
ecosystem’s many parts. They will be far more effective conservation attorneys with an
interdisciplinary approach to their education. The interdisciplinary curriculum based in a
companion forestry, fish and wildlife college would lead to a joint degree in their

program. Essential course work would include:

(INSERT)

This program contemplates the establishment of a fully balanced conservation
curriculum, and a functionally integrated clinic and internship that ties all elements of a
practical education together, which exists no where else in the country. With an
interdisciplinary understanding of natural resources science, management and policy, this
program will be unmatched in training attorneys who will be able to provide balance in
our judicial system enabling resource management decisions to be the domain of

professional managers.

75

APPENDIX D
Interview Questions

What are some of the most pressing, contemporary conservation problem facing
resource managers and policy makers?

Looking over the horizon, what conservation problems do you envision resource
managers and policy makers will have to confront?

How important is the role of the judiciary in establishing or maintaining
conservation policies?

Is the role of the judiciary and legal system increasing or decreasing in its
influence over conservation issues?

Do you believe attorneys and judges trying and hearing cases involving
conservation issues are adequately familiar with the principles of conservation?

Are you aware of formal training opportunities for attomey’s to acquire this skill
set?

In your view, would a conservation law program (curriculum, clinical application,

. and extemship) assist in developing the basic skill set needed to establish baseline

10.

ll

competency on conservation issues?

If such a law program were developed, what areas are most in need of attention
through the curriculum?

In looking at the syllabus of the overview course, what topics do you consider to
be especially important?

Does the overview adequately cover the range of contemporary conservation
issues you confront on a daily basis?

. From your perspective, are there critical elements that have been overlooked in

this overview course?

76

REFERENCES

(1842 ). Martin v. Waddell 41. U. S. S. Court. 234.

(1855). Smith v. Maryland 59. U. S. S. Court. 71.

(1892). Illinois Central Railroad v. Illinois 146. U. S. S. Court. 387.

(1896). Greer v. Connecticut 161. U. S. S. Court. 519.

(1979). Hughes v. Oklahoma 441. U. S. S. Court. 322.

(1993). North American Agreement on Environmental Cooperation Government of
Canada Govermnent of the United Mexican States Government of the United
States of America

(1994). Michigan Natural Resources and Environmental Protection Act United States

Aagaard, T. S. (2009). "Envrionmental Laws as a Legal Field: An Inquiry in Legal
Taxonomy." Cornell Law Review 95(263).

Bergstrom, E. A. (1939). "English Game Laws and Colonial Food Shortages " The New
England Quarterly 12 (4): 9.

 

Brown, T. L., D. J. Decker, et al. (2000). "The future of hunting as a mechanism to
control white-tailed deer populations." Wildlife Society Bulletin 28(4): 10.

Bryan, A. H. (1943 ). "Conservation " The American Biology Teacher 5(4): 3.

 

Cart, T. W. (1973). "The Lacey Act: America's First Nationwide Wildlife Statute " Forest
Histog 17(3): 9.

Davidson, J. H. (1990). "Introduction " South Dakota Law Review

 

Geist, V. (1988). "How Markets in Wildlife Meat and Parts, and the Sale of Hunting
Privileges, J eopardize Wildlife Conservation " Conservation Biology 2(1): 1 l.

 

Geist, V., S. P. Mahoney, et a1. (2001). "Why hunting has defined the North American
model of wildlife conservation " Transactions of the North American Wildlife and
Natural Resources Conference 66.

 

77

Jacobson, C. A. and D. J. Decker (2006). "Ensuring the Future of State Wildlife
Management: Understanding Challenges for Institutional Change " Wildlife
Society Bulletin 34(2): 5.

Kawashima, Y. and R. Tone (1983). "Environmental Policy in Early America: A Survey
of Colonial Statutes " Journal of Forest History 27(4): 1 1.

Keiter, R. B. (1998). "Ecosystems and the Law: Toward an Integrated Approach "
Ecological Applications 8 (2 ): 9.

Kirsch, M. T. (1997). "Upholding the Public Trust in State Constitutions " Duke Law
Journal 46(5): 41.

Mahoney, S. P., V. Geist, et a1. (2008). The North American Model of Wildlife
Conservation: Enduring Achievement and Legacy. Strengthening America's
Hunting Heritage and Wildlife Conservation in the let Century: Challenges and
Opportunities S. C. Council. Washington DC. .

Manen, M. v. (1990 ). Researching lived experience: Human science for an action
sensitive pedagogy Albany State University of New York Press

Matthews, O. P. (1986). "Who Owns Wildlife? ." Wildlife Society Bulletin 14(4): 6.
Moutsakas, C. E. (1994). Phenomenological Research Methods Thousand Oaks Sage

Nie, M. (2004). "State Wildlife Policy and Managemetn: The Scope and Bias of Political
Conflict " Public Administration Review 64(2).

Nissenbaum, R. A. and T. Lewis (2003). "Ghettoization in Conservation Biology: How
Interdisciplinary Is Our Teaching? ." Conservation Biology 17(1): 6-10.

Randall, R. H. (1939). "Conservation of Natural Resources " Annals of the American
Academy of Political and Social Science 206(Government Expansion in the
Economic Sphere): 4.

Ryan, M. C. and 1. Henry Campa (2000). "Applications of Learner-Based Teaching
Innovations to Enhance Education in Wildlife Conservation " Wildlife Society
Bulletin 28(1): 168-179.

Sax, J. L. (1970). "The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention " Miclfigan Law Review 68(3): 95.

Touval, J. L. and J. M. Dietz (1994). "The Problem of Teaching Conservation Problem
Solving " Conservation Biology 8(3): 902-904.

Trefethen, J. B. (1975). An American Crusade for Wildlife New York Winchester Press

78

Woodward, C. R. (1929). "Agricultural Legislation in Colonial New Jersey " Agricultural
Histogy 3(1): 13.

Young, H. A. (1952). "Conservation and Wise Utilization of Natural Resources in
Canada " Annals of the American Academy of Political and Social Science
281(The Future of Our Natural Resources ): 6.

79