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.
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
tfking106@aol.com.
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