Consultation

The word “consultation” is used in dozens, maybe hundreds or thousands of United States laws, regulations, guidelines, standards , and probably comic books, referring to something that should be done on the way to making decisions. Federal agency officials are regularly directed to consult with other federal officials, with federally recognized Indian tribes, with state and local government agencies, with subject-matter experts, with specific concerned parties, and sometimes even with the general public. These officials are usually told to initiate consultation early in planning, and are occasionally (though not often) told to bring it to some kind of conclusion before actually making a decision. Very occasionally they are told that consultation is supposed to influence their decisions, and there is a good deal of case law indicating that they should keep an administrative record documenting their consultation.

However, there is little official direction about just how an agency ought to consult – that is, about what “consultation” means.

I think that’s a problem that’s likely to render meaningless all the cogitation, head-scratching and paper-production that’s going on in the agencies these days – sometimes with reference to “tribal consultation,” sometimes with respect to “sacred sites” management, sometimes (though rarely, it seems) with respect simply to how the public – the voters and taxpayers – ought to be involved in their government’s decision-making.

So here’s some unsolicited advice for the White House, the Department of the Interior, the Forest Service, and all the others who are worrying about such matters:

(1) Give some thought to what “consultation” ought to mean.

(2) Once you figure it out:

      (a) Try to make sure your administrative procedures let or even make it happen; and

      (b) Give your people some explicit direction and training in how to do it.

I don’t think that item #1 above is all that difficult. It comes down to a simple rule, articulated long ago by a guy whose name a lot of politicians like to invoke these days, which goes like this:

"Therefore all things whatsoever ye would that men should do to you, do ye even so to them"
                                                              (Jesus of Nasareth, according to Matthew 7:12).

Or in its common simplified form: “Do unto others as you would have them do unto you.” Think about how you would want to be consulted if government was going to do something potentially affecting you. Ask yourself:

     • Would you be satisfied getting a letter saying “We’re planning to do XYZ; if you have any comments, please send them in within 30 days?”

     • Would it be OK with you for the government to take your comments, task somebody with writing dismissive responses to them, and ignoring them?

     • Would you think it reasonable for the government to establish in advance, and unilaterally, what could and couldn’t be discussed in the course of consultation?

     • Do you think that it would be helpful for the government to send low-level employees or contractors to chat with you, who couldn’t do a thing to accommodate your concerns?

     • Would you be satisfied with “listening sessions” that collected your concerns but didn’t engage you in trying to do anything about them?

No? I didn’t think so. But all the above (and other things just as ineffective and insulting) are things that government agencies routinely do under the guise of “consultation.”

So how would you like to be consulted? I don’t know about you, but I’d like to be consulted in the following manner:

1. Explain to me, in words I can understand, what it is you’re thinking of doing. Do this before you’ve decided to do it, or invested much time and money in planning to do it.

2. Communicate with me, back and forth, about

     a. Why you want to do what you want to do;

     b. What its purpose is, and why that purpose is justified;

     c. Alternative ways of achieving the purposes that justify doing it;

     d. Any problems I have with your doing it;

     e. Ways to resolve my problems; and

     f. If you don’t think you can resolve my problems, why you can’t.

3. If possible, reach agreement with me about how my problems will be addressed.

4. Do what you’ve agreed to do.

5. If we can’t reach agreement, document how we’ve tried to do so, and do whatever you can do to address my problems.

That, it seems to me, is what consultation ought to entail, and what government officials ought to be directed, instructed, and trained in doing.

Another thing they need to be directed, instructed, and trained about – because it’s critical to effective consultation – is thinking in advance about the intellectual baggage that they, the government officials, and their advisors, contractors, and experts, bring to the consultation table. This advice comes from a source (among others) that’s not quite as hoary as the one cited above, but it’s long enough in the tooth, and popular enough, that it ought not be the mystery it seems to be to some government officials and consultants:

“Your perceptions are likely to be one-sided, and you may not be listening or communicating adequately”
                               (Roger Fisher & William Ury: Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, Penguin 1991:22).

One of the great frustrations that Indian tribes have in “consulting” with some federal land management agencies about cultural resource issues is that they find themselves consulting with archaeologists, or with managers who are influenced by archaeologists, who expect them to phrase their cultural concerns in archaeological terms – or who at least themselves can’t get beyond archaeological world views. So the tribes are supposed to be happy that you’ve sent out archaeologists to find all the “sites” and designed your project to “avoid” them? That may make sense to your archaeologist, Ms. Manager, but it’s unlikely to carry much weight with a tribe. Citizens seeking to consult about impacts on their neighborhoods are often similarly frustrated by government representatives who think only about the historic or architectural value of buildings, or about the economics of a community’s lifeways.

A critical thing that agency people need to consider going into a consultation is: “How are the people I’m consulting likely to perceive the issues?” And they ought to prepare themselves – through study, through the composition of their consulting team, through simply keeping their minds open and sorting through their own beliefs, assumptions, and biases – to understand those perceptions and deal with them thoughtfully.

These things may seem intuitively obvious; it may seem unnecessary even to mention them. But I think that if they’re not thought about and addressed explicitly, all the direction in the world to “consult” isn’t going to do any good.

Public Hearings, Public Participation, and Consultation

From Basin and Range Watch at http://basinandrangewatch.org/Stateline.html

September 3, 2011 - The Moreno Valley office of Bureau of Land Management (not the local Needles BLM office) held what was thought to be a scoping meeting at the Primm golf course for First Solar's Stateline Solar Farm application for a Right-of-Way for about 2,200 acres of public land next to the Ivanpah Solar Electric Generating System. Members of the public drove hours from as far as Palm Springs, Needles, and Las Vegas and beyond to the meeting thinking that they would be able to give voice to comments concerning the project. Union members, environmentalists, members of the Chemehuevi Tribe, and other concerned citizens attended the meeting hoping to have a chance to give comments in a public venue to the federal agency responsible for permitting the project.

They were denied this chance.

The meeting turned out to be a chance for First Solar to tell the public a few items about the proposed project, and then a "crowd-management" session of tables with various contractors available to answer questions privately. This is not what the public wanted. Quite often, in well-run BLM offices, scoping meetings will give people a chance to vocally enter comments into the record, and even have a recorder present to do this. Often an audience wants to hear other's concerns and learn about different issues and opinions. This is democracy after all.

But lately a new style of scoping has emerged, where the public is handed a sheet of paper and in 75 words or less asked to write comments to be handed in to BLM. No oral comments allowed. Jeffery Childers, BLM Project Manager for the application out of Moreno Valley, California, denied the public any chance to give public comments at this meeting after First Solar gave a brief review of the project. In addition, a county sheriff squad car was parked outside the building, and three BLM Law Enforcement Rangers armed with handguns and tasers were present in the room.

A colleague sent me the above link, asking if I was aware of similar forms of “consultation” or “scoping” used on other projects around the nation. My answer was sort of “a pox on both your houses.”


I’ve seen the basic format described above – presentation followed by breakouts – used quite responsibly in a lot of public participation efforts; it can be a lot more effective than the traditional “public hearing” as a means of sharing information and helping people understand a project and its potential impacts. Public hearings, in my experience, too often devolve into what a tribal colleague once defined for me as “Three-I” sessions: “Inform, get Input, and Ignore.” The proponent makes its pitch, the public officials blather, then each member of the benighted public gets 3 or 5 or 7.2 minutes to speak, and does so with greater or less coherence and vitriol, whereupon the “responsible” agency thanks everyone and checks off “public hearing” on its list of things to do.


It’s sad that people concerned about project impacts, like Basin and Range Watch in this case, put so much stress on public hearings. Such a hearing is a chance to vent, but that’s about all it is.


On the other hand, a “present the project and have breakouts,” by itself, may not accomplish much, and certainly lacks the synergy of a public hearing. It may be particularly ineffective – even counterproductive as seems to have been the case with the First Solar “hearing,” particularly when people have to drive in from considerable distances with the expectation of being heard.


It ought to be noted that neither the traditional hearing nor the “present and breakout” approach constitutes “consultation” as defined in the regulations implementing Section 106 of the National Historic Preservation Act. Nor, of course, does it have anything to do with an agency’s responsibility to consult with Indian tribes on a government-to-government basis. Section 106 consultation is defined as:


the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them (36 CFR § 800.16(f), emphasis added).


Tribal consultation, and, I think, all consultation, ought to be similarly understood – you try to find out what people’s concerns are (which may be aided by hearings and presentation/breakout sessions), you discuss them – which means a back and forth conversation, whether face-to-face or via phone, letter, internet or smoke signal – and consider them, and most importantly, unless for some reason it’s not feasible to do so, you seek agreement about how those concerns will be addressed. You may not achieve it, but you try. Which means negotiation, and documenting its results before you make your decision.


That’s how an agency or project proponent actually respects somebody’s concerns. Hearings and presentation/breakout sessions may contribute to this sort of consultation, but they don’t substitute for it.