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Saturday, July 27, 2013

Sidestepping Consultation: Part Three

Third and last in a series on how project sponsors and government agencies can avoid or minimize the impacts of having to consult with Indian tribes, property owners, and citizens when "complying" with U.S. historic preservation and environmental laws and regulations.

Ignore Alternatives

Particularly if you’ve been successful in establishing presumptions favorable to your plans (See previous discussion), you should be able to ignore a lot of alternatives that your opponents might like to see considered.  Actually, you should be able to keep them even from knowing about such alternatives, so they won’t even be able to start arguing for them.  After all, they’re probably not specialists in mining or energy production or whatever it is you’re doing, so they have no way to know what options are being kicked around among the experts.  The last thing you want to do is let them in on the secret.

So if the DeepDark Mine is intended to produce Dilithium crystals for use in matter/antimatter energy production, and there’s research underway into formulating Dilithium from sewage, you don’t want to reveal this alternative until and unless you’re forced to by a regulatory agency or by public exposure.  Neither of these is particularly likely to happen if you’ve been successful in establishing favorable presumptions.  If somebody does raise the possibility of processing sewage instead of digging the mine, you should be able to give the idea short shrift because it’s inconsistent with the agreed-upon presumptions.

Expand Alternatives

On the other hand, it’s sometimes helpful to expand the range of alternatives thrown on the table – not for extensive, expensive consideration, but just for discussion – so those that might actually work get lost in the noise generated by impossibilities. 

Outside the cultural resources and environmental arenas, the National Rifle Association in the United States has recently given us a fine example of alternative expansion.  Faced by massive popular revulsion at gun violence in the wake of the massacre at Newtown, Connecticut, the NRA vigorously espoused improved mental health as the solution.  It’s hardly debatable that improved mental health would reduce the number of nutcases with guns (or with rubber bands or chewing gum, for that matter), but fixing the nation’s mental health is a big, complicated job.  By shifting the focus from the feasible alternative of reducing the number of guns available to the mentally ill to the near-impossible task of curing them, the NRA skillfully muddied the water and thus far has once again preserved its members’ ostensible right to deploy whatever kinds of weaponry suit their fancy.

You can learn from the NRA.  Propose, say, a study of how to mine Dilithium under aquifers without polluting them, or a documentary video on the bridges of West Easterly County.  Or maybe suggest development of a web site on big blue oaks, or a tell-all book on people who’ve made out on the Kissing Bridge.  Anything to divert attention from the straightforward question of whether putting in the mine, taking down the tree, or replacing the bridge is a good idea.  Some ideas may get rejected out of hand, but some may get traction, and in any event, offering them will make you look responsive to people’s concerns while actually confusing the consultation.

Pre-draft an Agreement

In my consulting practice I strongly recommend against drafting an agreement document before you start consulting, but that’s for people negotiating in good faith.  This paper is for people negotiating in bad faith, so I can say that for you, pre-drafting an agreement is a good idea.  Make it say what you want it to say, with a few cosmetic elements designed to make it look responsible, and promote it as the obvious, reasonable solution to the conflicts posed by your project (which, of course, you don’t acknowledge as real conflicts).  This is easiest to do if you represent the government agency responsible for overseeing the consultation; if you represent a non-governmental project proponent you may need to persuade the overseeing agency to buy into your document before presenting it to the other consulting parties.  This is usually easy to arrange, because having an agreement document to work with can be presented as an efficiency-builder, something that will make the government’s life easier.  Since the in-boxes of overseeing agency bureaucrats are often just as overflowing as are those of tribal and state officials, those bureaucrats tend to welcome such efficiencies.

Runaway Agreements

Even if you can’t pre-draft an agreement document, you can minimize the damage it can do to your interests.  Of course, you can negotiate aggressively and with care – that’s only fair.  But beyond what’s fair, you can try to make the agreement as ambiguous as possible, as unclear as possible about who is supposed to do what, and as complicated as possible for anyone to try to enforce.

One simple ploy is to make the document long, with many clauses and subclauses, with special emphasis on clauses that don’t commit anyone (or at least, don’t commit you or your client) to doing anything.  In writing NHPA Section 106 memoranda of agreement (MOAs), it’s become very common to devote page after page to “whereas” clauses –  for instance: “Whereas the DeepDark Mine Company proposes to construct the DeepDark Mine.”  As that example illustrates, “whereas” clauses are supposed to state the facts, and sometimes to recite the events that have led up to the terms agreed upon.  “Stipulations” then specify what’s actually going to be done (“The Company will employ the non-ground-disturbing methodology described in Utazona Division of Mines Technical Paper 17, dated April 1 2024, to avoid intruding upon the PaleAle Aquifer”).  People can get very fixated on “whereas” clauses, both because they represent what everybody is agreeing represents the reality of the case and because they’re a place to get licks in, to make oneself look good (“Whereas the U.S. Bureau of Minerals is deeply and righteously concerned about the welfare of the Kawako Tribe.”).  Negotiators from what Edward Hall (1977) and others call “high context” societies (including most indigenous groups) may understandably want to use agreements to say things that, in essence, play well with the folks back home (“Whereas the Tribal Tribe has endured centuries of suffering as the result of U.S. government actions.”), but anybody can play the game.  You may be able to get the consulting parties so wrapped up in arguing about historical minutiae and statements of principle that by the time they get to the real meat of the document – the stipulations – they’re exhausted and have lost interest; then you can make the stipulations say whatever you want them to say.

What do you want them to say?  That depends on the real-world circumstances with which you’re dealing, of course, but you probably want them to commit you, your agency, or your client to doing as little as possible, in the most untimely possible ways.  Some commonly used strategies include:

Using passive voice.  Don’t let the document say “the DeepDark Mining Company will do X, Y, and Z;” make it say “X, Y, and Z will be done.”  This way there’s no real telling who’s going to do X, Y, and Z; nobody really has the responsibility.  You may be able to slither out of it altogether, or fob it off on somebody else; at the very least you can make compliance with the agreement’s terms hard to enforce.

Employing abstractions.  Abstract terms like “best practices,” “high scientific standards,” “due diligence,” and “culturally sensitive” can mean almost anything, and probably do mean different things to the different consulting parties. 

Do a plan.  I very commonly see agreement documents stipulating that Party X will construct a plan (or “a plan will be constructed”) to accomplish something, perhaps according to detailed standards, and perhaps subject it to detailed review by other parties – but then fails to stipulate that the plan will be implemented once it’s been constructed.  So the plan may be developed – probably taking years, and all the while your project’s going forward – and then put on the shelf to gather dust.

Kick the can.  One of the beauties of agreeing to do a plan is that usually it means the parties are agreeing that your project can go forward, subject to doing (and maybe implementing) your plan down the road someplace.  “Kick-the-can” agreements are terrible from the standpoint of the good-faith negotiator, but from a bad-faith perspective, they’re great.

Control the Agreement Document

It’s important to maintain as much control of the agreement document as you can, to either do the drafting yourself or strongly influence those who do it.  Having an impressive, aggressive lawyer at your side can be a big help here; she can sneer (even through a smile) at all the poor stupid non-lawyers struggling with a legal document, and make it clear that only she is really competent to do the drafting.  She can flummox them with what Justice Scalia has memorably called “legalistic argle-bargle”[1].  Once she’s beaten the opposition into submission, you can make the document say what you want it to say.  It’s useful, too, to have a stock of laws, regulations, and policies to draw upon as authorities for what can and cannot be done (whether they’re really relevant or not).  It’s remarkable what people will accept as authoritative, controlling, procedures.  Just the other day, I was told by a government official that the “Code of Federal Regulations” required production of certain documents.  The Code, of course, is a vast corpus of direction; when I asked for a specific citation laying out the requirement she was insisting be complied with, the official couldn’t provided it – probably because it doesn’t exist.  But it was a brave ploy, and probably works with a lot of people.

I’m sure there are lots of other ways to sidestep consultation, and I’d welcome suggestions – which can be anonymous if you wish.  Send them to me at

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