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Toward a more democratic approach to endangered species policy implementation

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Title:
Toward a more democratic approach to endangered species policy implementation the Colorado Species Conservation Partnership
Creator:
Bergles, Matthew Paul
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English
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xvii, 384 leaves : ; 28 cm

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Subjects / Keywords:
Endangered species -- Law and legislation -- Colorado ( lcsh )
Endangered species -- Government policy -- Colorado ( lcsh )
Endangered species -- Government policy ( fast )
Endangered species -- Law and legislation ( fast )
Colorado ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 357-384).
General Note:
School of Public Affairs
Statement of Responsibility:
by Matthew Paul Bergles.

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|University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
166344768 ( OCLC )
ocn166344768
Classification:
LD1193.P86 2006d B47 ( lcc )

Full Text
TOWARD A MORE DEMOCRATIC APPROACH TO ENDANGERED SPECIES
POLICY IMPLEMENTATION:
THE COLORADO SPECIES CONSERVATION PARTNERSHIP
by
Matthew Paul Bergles
B.S., Colorado State University Pueblo, 1979
M.A., University of Colorado at Denver, 1990
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Public Affairs
2006
i
5


This thesis for the Doctor of Philosophy
degree by
Matthew Paul Bergles
has been approved
by
Linda deLeon
David Carlson
Peter deLeon
Date
Nancy Leech


Bergles, Matthew Paul (Ph.D., Public Affairs)
Toward a More Democratic Approach to Policy Implementation
The Colorado Species Conservation Partnership
Endangered Species and Private Landowners
Thesis directed by Associate Professor Linda deLeon
ABSTRACT
This dissertation examines implementation of the Colorado Species
Conservation Partnership (CSCP), a voluntary, landowner-initiated state endangered
species program. The purpose is to determine the extent of implementation success in
achieving wise habitat preservation and species management agreements between
landowners, the Colorado Division of Wildlife (CDOW) and in certain cases, a third
party, non-governmental organization; for critical, threatened, and endangered
species. The problem addressed is that most economic activities harmful to wildlife
and wildlife habitat occur on private land and the most significant cause of species
endangerment is habitat loss, fragmentation and disruption induced through the
inherent conflict between human development activities and habitat needs of species.
Therefore, preservation of private habitat is essential to saving threatened and
endangered species.
Results indicate that to date, implementation of CSCP has been very
successful. Success was found to be dependent on a strong bottom-up, democratic
approach to policy implementation by CDOW perhaps best characterized as


Interactive Symbiosis that included the literature-based concepts of successful
implementation: value-added through discretion, mutual adaptation, policy learning
and incentives. Additionally, CDOW understood the political, economic and social
contexts that affected CSCP implementation and disseminated that understanding
throughout the implementation process. No single factor emerged as being the
primary determinant for landowner participation, rather many factors aligned.
The study was conducted using an inductive, qualitative, embedded single
case study design bounded by a literature-based conceptual framework and three
research questions that purposively included the entire population of participants in
CSCP through June, 2006. This population includes eight participant landowners -
six in the Gunnison Basin/Gunnison Sage Grouse Target Area on Colorados West
slope, and two in the Short grass Prairie/Grassland Species Target Area on
Colorados Eastern plains (as designated by CDOW) six participant employees of
CDOW and the Executive Director of the Ranchland League, a private land trust
facilitator.
The study provides a formative evaluation of CSCP, advances and builds on
the literature of policy implementation theory and process and provides practical


guidelines and recommendations for policymakers contemplating revising existing
private land preservation programs for the benefit of imperiled species, or designing
and implementing them for the first time.
This abstract accurately represents the content of the candidates thesis. I recommend
its publication.
Signed
Linda deLeon


DEDICATION
This thesis is dedicated first and foremost to my beautiful children, Luke and Mary, in
hopes that for the rest of their lives and beyond there will always be a bit of green
grass under their feet, a breath of clean air to breath, a patch of blue water to sail upon
and a whale on the horizon to set them dreaming'- (Jacques-Yves Cousteau; Jean-
Michel Cousteau). And, to the endangered, threatened and critical animal species of
Colorado, the United States and the entire world whose struggle to survive is a test of
the moral mettle of humankind.


ACKNOWLEDGEMENT
I am most indebted and thankful to Dr. Linda deLeon for taking this once-
moribund project and injecting it with new life by agreeing to serve as committee
Chair and assembling an outstanding committee, all to whom I am also indebted. Dr.
Nancy Leech was always prompt and cheerful when expertly answering
methodology-related questions as was Dr. David Carlson in his willingness to share
his astounding understanding of agricultural and wildlife issues and the research
process. Professors Gage and Peter deLeon offered their expertise and critique at the
end of the process, and by doing so, helped create the final product.
During the time of my doctoral studies I got married, fathered two children,
built a house and watched my wife Kate struggle with the effects of contracting the
West Nile Virus. I mention this only by way of providing the context within which
her support was given. Many times along the way I was absent from family activities
and fatherly obligations that lesser spouses would not have tolerated. She understood.
For this I am eternally grateful. I am equally grateful for my two beautiful children -
Luke and Mary and their patience while I worked. They were always assured of
the importance of my work by telling them that I was helping animals.
I would also like to acknowledge the outstanding men and women at the
Colorado Division of Wildlife especially Mort Kincaid who from my first contact


until the dissertation defense were cheerful and eager to provide all the assistance
they could. It has been politically fashionable in the last few years to dismissively
bash public employees as bureaucrats, or worse. As with most all of the public
employees I have had contact with, CDOW employees are extremely knowledgeable,
professional, conscientious and courteous. The hours and invaluable service they
provide to the citizens of Colorado is incalculable. Thank you.
Finally, to the landowner-participants that I met during the course of this
research, I once again offer thanks. They really do work year-round, seemingly 24
hours every day to care for their land and earn a living. They also were most always
willing to answer their telephone, their e-mail and their doors to my questions. The
most enjoyable part of this project was being with them and observing, first-hand -
especially from the seat of a moving tractor harvesting hay the habitat that each of
their families owned.


CONTENTS
Tables........................................................xvii
CHAPTER
1. INTRODUCTION..................................................1
Dissertation Overview......................................8
2. THE COLORADO SPECIES CONSERVATION PARTNERSHIP
Origins....................................................9
CSCP Overview, Objectives and Benefits....................10
Authority and Organization................................17
Funding...................................................20
Application Process.......................................20
Implementation Process....................................21
The Endangered Species Act Overview.............................25
Legal Aspects of ESA Implementation Nexus with Private
Landowners and States.....................................26
Delisting and Downlisting Species Section 4 of the ESA.. .34
Habitat Loss....................................................36
Urban and Exurban Sprawl........................................37
Agricultural Activities...................................42
IX


Summary
,45
3. REVIEW of LITERATURE
Introduction.................................................48
Voluntary Environmental Programs.............................49
Public/Private Partnerships in Land Conservation.............53
Land Trusts...........................................56
Conservation Easements................................59
Alternative Dispute Resolution (Negotiation).................62
Implementation...............................................69
The Policy Sciences in Endangered Species Management
and Recovery..........................................70
Partnerships in Species Management....................72
Endangered Species-Specific Implementation............74
History of Implementation Research....................79
Implementation: Definitions, Complexity, Measurement
and Democratic Possibilities..........................84
Summary..............................................101
Incentives and Implementation........................102
Federalism and ESA Implementation....................104
Comprehensive Summary.......................................109
x


4. METHODS.........................................................115
Introduction.................................................115
Rationale....................................................117
Embedded, Single Case Study Design....................118
Data Collection..............................................120
Focusing and Bounding the Collection of Data..........120
Defining Implementation...............................122
Conceptual Framework..................................129
Research Questions....................................132
Data Collected........................................133
Case Study Database...................................135
Data Analysis................................................136
Constant Comparison Analysis..........................137
Classical Content Analysis............................139
Keywords-in-Context Analysis..........................140
Data Interpretation Through Cross-case Pattern Analysis.... 140
Summary......................................................144
5. RESULTS........................................................ 146
Introduction.................................................146
xi


Gunnison Basin/Gunnison Sage Grouse Target Area..............148
Arlo Campo............................................150
Elias Bono............................................155
Glenn Bayh............................................157
Lester McCartney......................................166
Mick Harrison.........................................172
Rhett Bullock.........................................174
Haddie Larriett.......................................180
Jude Paulus...........................................184
Short-grass Prairie/Grassland Species Target Area............195
Don Rusk..............................................195
Colin Calvin..........................................205
Ed Petrie.............................................214
Keith Krueger.........................................223
Mort Kincaid..........................................227
Mac Bryant............................................236
Cross-case Pattern Analysis..................................242
Condensed Emergent Themes....................................246
ESA...................................................246
xii


Finances
246
First Impressions.......................................247
Inherent Resources......................................247
Implementation Style....................................247
Land Value..............................................248
Organizational Trust....................................248
Negotiation.............................................249
Neighbor relations......................................249
Political Climate.......................................250
Post Implementation.....................................250
Condensed Theoretical and Contextual Themes....................250
Economic Context.................................250
Incentives.......................................251
Learning.........................................251
Mutual Adaptation................................252
Political Context................................253
Social Context...................................254
Value-added Through Discretion...................255
Summary........................................................255
xiii


6. Discussion and Analysis of Findings..............................257
Introduction.................................................257
The research Questions Answered...............................258
Question 1.............................................258
Question 2.............................................261
Question 3.............................................264
Interpretation and Implieations...............................271
Emergent Themes...............................................273
Endangered Species Act.................................275
Finances...............................................277
First Impressions/Neighbor Relations...................278
Inherent Resources.....................................281
Implementation Style...................................283
Land Value.............................................288
Organizational Trust...................................290
Negotiation............................................291
Political Climate......................................292
Post Implementation....................................293
xiv


Findings Related to Conceptual Framework
295
Incentives............................................295
Learning..............................................297
Mutual Adaptation.....................................299
Value-added Through Discretion........................301
Contextual Themes Political, Economic, Social..............302
Political Context.....................................303
Economic Context......................................305
Social Context........................................306
Summary...........................................................307
7. SUMMARY, CONCLUSIONS and IMPLICATIONS...........................308
The Literature Revisited.....................................310
Emergent Theoretical and Practical Guidelines.........318
Toward a More Democratic Approach to Policy Implementation....323
Research Limitations.........................................330
Suggestions for Future Research..............................330
A Note on Methodology........................................333
xv


Last Thoughts..............................337
APPENDICES...........................................339
A. CASE STUDY PROTOCOL..........................339
B. CODES........................................345
C. UCD HUMAN SUBJECTS COMMITTEE PROTOCOL and
INFORMED CONSENT FORM.........................350
D. CSCP APPLICATION FORM (EXAMPLE ONLY).........356
WORKS CITED..........................................357
xvi


LIST OF TABLES
Table
4.1 Graphic Representation of Conceptual Framework Using the Bins Approachl32
5.1a Codes and Code Frequency Arlo Campo Interview...................154
5.1b Keywords and Keyword Frequency Arlo Campo Interview.............155
5.2a Codes and Code Frequency Elias Bono Interview...................156
5.2b Keywords and Keyword Frequency Elias Bono Interview.............156
5.3a Codes and Code Frequency Glen Bayh Interview....................163
5.3b Keywords and Keyword Frequency Glen Bayh Interview..............166
5.4a Codes and Code Frequency Lester McCartney Interview..............170
5.4b Keywords and Keyword Frequency Lester McCartney Interview........172
5.5a Codes and Code Frequency Mick Harrison Interview.................174
5.5b Keywords and Keyword Frequency Mick Harrison Interview..........174
5.6a Codes and Code Frequency Rhett Bullock Interview.................178
5.6b Keywords and Keyword Frequency Rhett Bullock Interview...........179
5.7a Codes and Code Frequency Haddie Larriett Interview...............184
5.7b Keywords and Keyword Frequency Haddie Larriett Interview.........184
5.8a Codes and Code Frequency Jude Paulus Interview...................188
5.8b Keywords and Keyword Frequency Jude Paulus Interview............195
xvii


5.9a Keywords and Keyword Frequency Don Rusk Interview...............199
5.9b Codes and Code frequency Don Rusk Interview.....................205
5.10a Codes and Code Frequency Colin Calvin Interview.................213
5.10b Keywords and Keyword Frequency Colin Calvin Interview...........214
5.1 la Codes and Code Frequency Ed Petrie Interview..................219
5.1 lb Keywords and Keyword Frequency Ed Petrie Interview.............220
5.12a Codes and Code Frequency Keith Krueger Interview................228
5.12b Keywords and Keyword Frequency Keith Krueger Interview..........228
5.13a Codes and Code Frequency Mort Kincaid Interview.................232
5.13b Keywords and Keyword Frequency Mort Kincaid Interview...........233
5.14a Codes and Code Frequency Mac Bryant Interview..................242
5.14b Keywords and Keyword Frequency Mac Bryant Interview............243
5.15 Combined In Vivo Code Frequency Totals........................245-246
5.16 Theoretical and Contextual Categories From........................246
xviii


CHAPTER 1
INTRODUCTION
This dissertation examines implementation of the Colorado Species
Conservation Partnership (CSCP), a voluntary, landowner-initiated state endangered
species program. The purpose is to determine the extent of implementation process
success in achieving habitat preservation and species management agreements
between landowners, the Colorado Division of Wildlife (CDOW) and in certain
cases, a third-party, non-governmental organization, for critical, threatened, and
endangered species.
The investigator entered the study with no predetermined framework of what
constitutes a successfully implemented program, but rather, allows such a
determination to emerge from the data. However, the collection of data is focused
and bounded by a literature review, a rudimentary conceptual framework and a set of
research questions that focus on the negotiation process between landowners, a third
party conservation easement facilitator (in certain cases) and CDOW the
implementing agency and the resultant agreements entered into between the parties.
The nexus discovered between negotiated agreements, emergent themes, literature-
based theoretical and contextual elements of the implementation process and
1


implementation success, should contribute to the implementation theory literature and
inform practitioners in state programs currently in operation, as well as those yet to be
conceived. Although qualitative, inductive and emergent, this mid-range design was
used to help avoid a field experience where everything would look important and
because it is impossible to embark upon research without some idea of what one is
looking for and foolish not to make that quest explicit" (Wolcott, 1982, p. 157).
Since most economic activities harmful to wildlife and wildlife habitat occur
on private land and the most significant cause of species endangerment is habitat loss,
fragmentation and disruption induced through the inherent conflict between human
development activities and habitat needs of species (Sierra Club, 2004;
Endangeredspecie.com, 2002; National Wildlife Federation, 2001; Stanford
Environmental Law Society, 2001; Czech et al., 2000; Shogren. 1998; Somach,
1994), preservation of private landscapes is essential to saving threatened and
endangered species. Sprawling land development to accommodate population
growth, referred to in this study as urban and exurban sprawl, along with
development of second residences (usually in the form of 35 acre ranchettes" in
Colorado), agricultural and other economic activities endanger more species listed
through the Endangered Species Act (ESA) than any other cause (Czech et al., 2000;
Wilcove et al., 1998). However, lands that remain in agricultural-related production
are far more beneficial to wildlife than are developed parcels (Maestas, Knight et al.,
o


2003; Mitchell, Knight et al., 2002), especially when it is untilled (Colorado Division
of Wildlife, 2002a; McCain, Reading & Miller, 2000).
Specific to Colorado, between 1987 and 2002, the state has lost 2.5 million
acres of agricultural land to development, an average of 460 acres per day. If present
trends continue, Colorado is projected to lose 3.1 million more acres of agricultural
land by 2022, most of it to large-lot exurban development. Since Colorado land
policy exempts lots 35 acres or more from any subdivision review processes, the state
lost over 2 million acres to such large lot development from 1972 to 2000 (American
Farmland Trust, 2006). Since the real estate value for agricultural land increased an
average of 16 percent between 1999 and 2003 to $730 per acre, yearly interest
accrued from a multi-million dollar land sale can often times exceed profits from an
average year of farm and/or ranch operations. Children of agricultural landowners
are opting in ever-greater numbers to leave farming and ranching for other careers,
leaving no one to work family operations. As Colorados population continues to
increase, farmers and ranchers face a myriad of economic and social challenges to
keeping their land agriculturally productive (Environment Colorado Research and
Policy Center, 2006).
Compounding the inherent problems within these trends, the majority of
present and potential habitat for species listed under the ESA exists on nonfederal
property owned by private citizens, states, municipalities, Native American tribal
governments and other non-federal entities (United States General Accounting Office,
3


1994). According to the Nature Conservancy (1993), more than half of the species in
the United States protected by the ESA have at least 81 percent of their habitat on
nonfederal land and between a third and a half of all protected species do not occur at
all on federal land. These statistics have remained constant as recently as 2001
(National Center for Policy Analysis. 2001; Noah & Zhang, 2001). Similarly,
Shogren (1998) reports that most of the approximately 1200 threatened and
endangered species in the United States have a substantial portion of their present and
future habitat on privately held land. Hence, listed plants and animals found on
private land are faring much worse than their counterparts inhabiting federal
properties (Wilcove, et al., 1998), strengthening the case for effective private habitat
protection. This is the problem this research addresses.
Much ESA literature (Bean, 1999; Shogren et al., 1999; Shogren, 1998) is in
general agreement that regulatory prohibitions against harmful private behavior,
including not only urban and exurban sprawl, but harmful agricultural practices, or
any other harmful behavior is unlikely to bring about the restoration and active
management of habitat needed for improving the status of endangered, threatened and
critical species. In fact, such regulations often create perverse incentives and
unintended consequences that lead to further degradation or outright destruction of
species habitat. New and creative policy and implementation approaches, usually
incentive-based, have been called for (Parkhurst, 2003; Bean, 2000 & 1993) and are
being implemented by state and federal agencies.
4


Thus, many states, especially those in the West, including Colorado, oppose
federal ESA listings because they allow the federal government to assume control
over what many view as local concerns (Runfed, 2005; Kincaid, 2004; Weiner, 1995)
and because federal listing supersedes a state's on-the-ground capacity to apply
valuable biological data and insular know-how in order to best accomplish recovery
(Runfed, 2005). Debate over interpretation of the intent of the ESA has been intense
since the Acts inception in 1973, especially regarding Section 6, federal cooperation
with the states (16 U.S.C. 8 1535 (C) (1)). Several states have designed and
implemented policies that attempt to avoid the need to list species as critical,
threatened, or endangered for economic, political, social, as well as environmental
reasons. Accordingly, in June 2000, under the Clinton-Babbit administration, the
United States Fish & Wildlife Service (USFWS) and the National Marine Fisheries
Service (NMFS) proposed a joint draft policy that would permit the Secretary of
Interior to avoid listing biologically imperiled species under the ESA if state and local
conservation efforts to protect those species existed or were planned (U.S. Federal
Register, 6/13/2000). The policy was officially adopted in 2003 (U.S. Federal
Register, 3/28/2003) and formalized the longstanding federal agency practice of
deferring to state and local conservation efforts, albeit with pre-implementation
evaluation criteria even if those efforts are unimplemented, unproven, or voluntary
- rather than listing a species under the ESA (Cassidy, 2002).
5


Many states, such as Colorado, that are experiencing significant population
growth and corollary rises in real estate value and development, and/or increasing
pressure on privately held habitat due to other economic activities (e.g. gas and oil
exploration and agricultural activities), are struggling to avoid species listings under
the ESA while simultaneously allowing for economic development. Implementation
of resultant voluntary, private land preservation programs is usually the responsibility
of state wildlife agencies that must balance the requirements of the ESA with the
interests of landowners and other key stakeholders. Since apparently no
comprehensive studies of successful implementation of these programs have been
attempted, new state programs such as CSCP have little if any comprehensive
information to guide them.
Colorados Species Conservation Partnership was chosen for examination in
this dissertation for three significant reasons. First, Colorado was proportionately the
third fastest growing state in the 1990s and although growth had slowed somewhat by
the end of 2004, the state was still ranked fourteenth in its growth rate (U.S. Census
Bureau, 2004) thus experiencing habitat fragmentation, disruption and loss. Second,
Colorado has 49 species (not including fish or mollusks) listed as either federally
endangered, federally threatened, state endangered, state threatened or of state special
concern (not a statutory category) (Colorado Division of Wildlife, 2006a). Third, the
ideal time to study policy implementation is during the time the policy is actually
being put into place in order to provide formative evaluation to agency officials,
6


legislators, target populations, academics and other relevant groups (Werner, 2004;
Schneider, 1999; Browne & Wildavsky, 1984; Williams, 1982).
This information can, in turn, provide timely information for those executing
policy implementation, be used to change discretionary choices, alter implementation
strategies, solve problems, provide impetus to change the policy if necessary and pre-
empt possible fatal flaws (Schneider, 1999; Williams. 1982 ). Furthermore, since this
study is being conducted concurrently with the implementation of the Colorado
Species Conservation Partnership, there is an excellent opportunity for formative
evaluation that can provide information about the behavioral mechanisms working at
each of the points of adaptation or decision in the implementation chain" (Browne &
Wildavsky, 1984, p. 208) while simultaneously fostering on the spot learning"
(Browne & Wildavsky, 1984, p. 214).
The implications of this research are intended to be both theoretical and
practical for if the study of theory and the study of fact do not fertilize each other,
both will be barren (Glaser, 1955, p. 1). Accordingly, it should (1) advance and
build the literature of policy implementation theory and process (2) provide practical
guidelines and recommendations for policymakers contemplating revising existing
private land preservation programs for the benefit of imperiled species, or designing
and implementing them for the first time and 3) provide a formative evaluation of the
CSCP implementation process for CDOW. The study should be particularly helpful
for state natural resource departments and divisions since, in the words of an Arizona
7


Game and Fish Department specialist: We have all the biological research we need.
We need to know more about effective implementation this study is important"
(Avey, 2003).
Dissertation Overview
This dissertation proceeds as follows: The Colorado Species Conservation
Partnership is discussed in Chapter 2 with an emphasis on its origins, objectives,
benefits, authority and organization, funding, application and implementation process.
Next, Chapter 3 presents a comprehensive literature review. Data collection,
descriptive, analytic and interpretive methods are laid out in Chapter 4 setting the
stage for a discussion of the results in Chapter 5. Chapter 6 answers the studys three
research questions, interprets the emergent themes and findings related to the
conceptual framework and their relationship to the literature in consideration of their
implications for CSCP. The chapter simultaneously generalizes what the findings
might imply for policymakers working in other state programs and those considering
designing similar programs. Finally, Chapter 7 provides a summary, revisits the
literature for appropriate confirmation and discusses how the study advances the
implementation theory literature and points out the dissertation's limitations before
concluding with a consideration of implications for future research.
8


CHAPTER 2
THE COLORADO SPECIES CONSERVATION PARTNERSHIP
Origins
The concept of a major landowner incentive program, created specifically for
at-risk wildlife species in Colorado was initiated in the summer of 2001. Discussions
between the Colorado Division of Wildlife (CDOW), Great Outdoors Colorado
(GOCO) and the Colorado Department of Natural Resources (CDNR) uncovered
strong mutual interest in creating a program geared toward protection of threatened
and endangered species habitat on private lands. Initiation of these discussions was
induced by the favorable outlook for substantial federal support becoming available
for state landowner incentive programs. With support from top management of each
organization, CDOW staff began to formulate a landowner incentive program the
future Colorado Species Conservation Partnership (CSCP) its operational
guidelines, financial requirements, staffing needs and a myriad of other issues and
requisite needs necessary when establishing any new state program (CDOW, 2002b).
Within CDOW. various sections of the agency designated staff to be part of a
team assembled for the purpose of the new program's start-up. Participating CDOW
sections included: Planning and Budgeting, Habitat, Real Estate, Species
9


Conservation, Contracting and Federal Aid. Advice was solicited from various non-
governmental organizations who could become potential CDOW partners in the new
program. These organizations included: the Nature Conservancy, Rocky Mountain
Bird Observatory, local land trusts, Colorado Farm Bureau chapters, the Colorado
Cattlemens Land Trust and others. In addition, further comments were obtained
from the Colorado Attorney Generals office and GOCO (CDOW, 2002b).
The Partnership was planned in three phases. The first involved program
start-up activities through CDOW, GOCO and CDNR. Phase Two was to focus on
gathering extensive financial support through GOCO and the U.S. Fish and Wildlife
Services (USFWS) Landowner Incentive Program (LIP) and putting it to work in
private land projects. This phase would also include CDOW staff setting program
priorities, soliciting project proposals, ranking proposals for higher-level review and
approval, concluding agreements with landowners and implementing habitat projects.
Phase Three was to build on these experiences by seeking additional funding in order
to expand to new areas and species in the state, and build on successes in the original
target areas (CDOW, 2002b).
CSCP Overview. Objectives and Benefits
In November, 2002, CDOW officially applied for federal funding of CSCP
through LIP. The application and accompanying program narrative provide an
excellent historical overview of CSCP. It states that CSCP will be a major
10


initiative and raise and spend S25 million of state and federal funds through 2006.
Its purpose is to provide technical assistance to private landowners for projects for
the protection and management of habitat on private lands for species-at-risk" and
pledges a voluntary, incentive-based program to protect and enhance crucial habitat
for threatened, endangered or at-risk species on private lands (CDOW, 2002b, p. 1).
Furthermore. CSCP pledges to improve the outlook for the long-term conservation
of species in three focus areas, provide quantifiable information on target species on
private lands, and promote habitat improvements consistent with farming and
ranching operations (CDOW, 2002b, p. 7). In an attachment to the application, the
Division provides an assessment of CSCP compared to criteria used to assess LIP
funding proposals as listed in the U.S. Federal Register on October 1, 2002.
Under Need, CDOW explains that habitat fragmentation and conversion,
along with land use practices are significant contributing factors to the decline of
species in Colorado. The document explains that sixteen species of vertebrates were
listed as federally threatened or endangered in 2002. It lists five additional species in
various stages of review for federal listing: the mountain plover, boreal toad, black-
tailed prairie dog, lesser prairie chicken and Arkansas darter. It is explained that
twenty species were listed by Colorado as endangered in the state, with another
twelve listed as threatened and an additional 44 listed by the state as species of
special concern. At the time, another 30 species were known or thought to be
declining in the state (CDOW, 2002b).
11


The document prominently describes the most significant trend contributing to
the loss of important habitat and species decline in Colorado during the previous
decade i.e., the state's tremendous population growth. It outlines how Colorados
population had grown an average of 3 percent annually since 1990 more than twice
the national average and explains that projections estimate another one million
people moving to the state in the next twenty years. It points out that in the 1990s,
four of the nations fastest growing five counties were in Colorado Elbert, Park,
Custer and Douglas with several other counties experiencing unprecedented growth
(CDOW, 2002b).
Relatedly. CDOW points out that this rapid growth means intense demand for
developable land and, as competition for limited land intensifies, Colorados native
species often lose out. Furthermore, as real estate prices sore, so does the price of
conservation. The document explicates this fact with examples from Routte County
where the average price for an acre of land rose from $2,000 in 1991 to $12,000 in
1997 and appraisals for open lands in Gunnison County showed a 10 percent or
greater annual increase in fair market value since 1995. The document makes the
case that in the race to establish a balance between development and habitat
protection, wildlife habitat too often finishes second (CDOW, 2002b, p. 1).
Throughout the document, CDOW expounds on the importance of private
lands as the key component in broad-based successes in species protection and
recovery. The agency points out their past experiences in open space protection,
12


utilizing one of the most active land trust communities in the nation (CDOW,
2002b, p. 2) and several successful initiatives such as the Colorado Wetlands
Initiative, Cooperative Habitat Improvement Program. Pheasant Habitat Improvement
Program and the Habitat Partnership program. According to the Division, these
programs helped them develop a strong understanding of the needs and desires of
landowners, as well as many successful examples of how habitat protection can be
incorporated into agricultural and ranching operations" (CDOW, 2002b, p. 2).
Because of the success of these programs and those of similar programs in other
states, the document proclaims that the outlook for success of CSCP has to be
considered good" (CDOW, 2002b, p. 2).
Furthermore, it is explained that landowners are often willing to protect
critical habitat on their land but are concerned about regulatory risk and financial
burdens that can be associated with such efforts. The document states that in order to
overcome such hesitancy, wildlife managers need to employ such tools as technical
assistance, biological expertise, financial assistance, conservation easements and
management agreements (CDOW, 2002b, p. 2). The document expresses that
options preferred by each landowner would vary depending on specific circumstances
and preferences. The goal would be to assemble the largest number of habitat
protection tools possible to enable wildlife managers to meet the needs of wildlife and
landowners at the same time.
13


The narrative explains that critical habitat for imperiled species would be
protected through partnerships with local governments, non-governmental
organizations and other state and federal agencies. CSCP is envisioned to help
address at-risk species habitat across the state through the funding of conservation
easements, management agreements or leases to conserve open lands that meet the
criteria established for three landscapes, or 'target areas. These areas have been
selectively prioritized by habitat need and the reality of limited staff and financial
resources. They include the Gunnison Basin and other significant habitat areas for
the Gunnison sage grouse, Eastern short-grass prairie habitat for a number of species,
including the black-tailed prairie dog, ferruginous hawk, mountain plover, long-billed
curlew and burrowing owl; and Front Range habitat for the Prebles meadow jumping
mouse.
Objectives for the Eastern short-grass prairie landscape are to protect and
manage short-grass prairie habitats necessary to prevent the listing or provide for the
downlisting or delisting of wildlife species in the short-grass prairie grassland
community (CDOW, 2002d., p. 1). Two species black-tailed prairie dogs and
mountain plovers are named as most urgently needing action on the short-grass
prairie. One, the black-tailed prairie dog, is designated by USFWS as warranted but
precluded from ESA listing and the other the mountain plover has had a
proposed for listing designation since 1999.
14


Objectives for the Gunnison sage grouse, an ESA listing candidate species,
and its target area include protecting private lands within the Gunnison sage grouse
range that provide important habitats such as leks (courting and mating areas),
production areas, winter range and habitats on private lands that are at imminent risk
of development or destruction. Another objective is to protect private lands that
provide Gunnison sage grouse habitat that if otherwise not protected would result in
elimination of 25-100 percent of a sub-population or an active lek complex through
the use of conservation easements and management agreements. Also, decreasing
fragmentation within the populations core area, or begin protection in currently
under-protected portions of the population and maintain existing habitat that is in
desired condition, or enhance habitat in need of some rehabilitation to meet desired
habitat condition based on site potential are listed as goals (CDOW, 2006c).
For the threatened Prebles meadow jumping mouse, CSCP objectives are to
protect the acreage needed for recovering three large populations. This acreage is to
be distributed among four large, five medium and nine small-sized wild, self-
sustaining populations across the iNorth Platte, South Platte and Arkansas River
drainages. Overall, the objective is to preserve a minimum of 20,000 acres of
Preble's jumping mouse habitat (CDOW, 2006c).
At the conception of CSCP, as stated above, the Gunnison sage grouse was,
and still is, under consideration for listing under the ESA. The black-tailed prairie
dog had, and still has a warranted but precluded designation under the Act and the
15


Prebles meadow jumping mouse was and is listed as threatened.Actions are
envisioned under CSCP to keep several species from being listed, or lead to their
downlisting (CDOW, 2002b). The narrative states that:
the Colorado Species Conservation Partnership will help the
U.S. Fish and Wildlife Service attain its long-term goals
and FY 2003 performance targets through the use of conservation
easements and management agreements on private lands for
the protection, enhancement and restoration of habitat for
threatened, endangered or at-risk species (CDOW, 2002b, p. 6).
The narrative also explains that the species CSCP is focusing on includes
federal, as well as state listed species, and species that are at risk of federal listing. It
further states that habitats expected to benefit from CSCP include upland and riparian
habitats and that by limiting its work to private lands, CSCP will help meet the long
term goals for the U.S. Fish and Wildlife [Service] related to off-Service lands"
(CDOW, 2002b, p.6). It proclaims that CSCP will result in significant
improvements in habitat quantity and quality for threatened and endangered species
in Colorado, and will produce important progress toward meeting high-priority goals
of the Division of Wildlifes Strategic Plan and the U.S. Fish and Wildlife Services
long term goals (CDOW, 2002b, p.6).
Expected benefits" of CSCP are stated as:
Continued, significant progress toward recovery of the Gunnison sage
grouse
16


Progress toward protection of the target number of Preble's meadow
jumping mouse populations
Stable or improving populations of species in the short-grass prairie
that are federal or state listed
Actions consistent with the multi-state Black-tailed Prairie Dog
|
Recovery Plan
Improved relations with landowners
Improved ability to quantify habitat conditions and population numbers
of threatened, endangered or declining species on private lands (CDOW,
2002b, p. 7).
Authority and Organization
Primary statutory authority for CDOW to head the Colorado Species
Conservation Partnership as the appropriate and best state agency (CDOW, 2002b,
p.5) is provided by Sections 33-2-103 and 33-2-106 of the Colorado Revised Statutes
(CRS). Section 33-2-103 CRS states:
It is the policy of this state to manage all nongame wildlife,
recognizing the private property rights of individual landowners...
to ensure their perpetuation as members of ecosystems; that species
or subspecies of wildlife indigenous to this state which may be
found to be endangered or threatened in the state should be accorded
protection in order to maintain and enhance their numbers to the
extent possible; [and] that this state should assist in the protection of
species or subspecies of wildlife which are deemed to be endangered
1 An eleven state conservation team formed after USFWS was petitioned to list the hlaek-tailed prairie
dog as 'threatened. The team developed the Black-tailed Prairie Dog Consenation and Assessment
Strategy in 1999. The Multi-state Conservation Strategy is an addendum to that document prepared to
provide guidelines under which manage plans were to be developed by individual states and their
respective working groups defining measurable actions, deadlines and guidelines for that state (Luce,
2003). In Colorado, the management plan is the Conservation Plan for Grassland Species in Colorado
(CDOW, 2003b).
17


or threatened elsewhere.
Section 33-2-106 CRS authorizes the Division of Wildlife to:
(1) ...establish such programs...as are deemed necessary for
management of non-game, endangered, or threatened wildlife.
(2) In carrying out programs authorized by this section, the
Division may enter into agreements with federal agencies or political
subdivisions of this state or with private persons for administration
and management of any area established under this section or utilized
for management of nongame, endangered or threatened wildlife.
In addition to statutory authority, CSCP is designed to be consistent with
CDOWs strategic plan. The Colorado Division of Wildlifes 2002-2007 Strategic
Plan recognizes the importance of cooperation with private landowners to enhance
and protect habitat for at-risk species. The plan states that:
...the Division will continue to develop and promote voluntary,
incentive-based programs with private landowners to enhance,
protect and conserve species and habitat. Form partnerships in
such a way as to protect private property rights and economic
viability of participating landowners and adjacent landowners
(CDOW, 2006b, p. 27).
In the strategic plan, CDOW designates ten high priority achievement goals
as determined by the Colorado Wildlife Commission to be the activities that are
crucial to success of CDOW efforts for five years. Among these ten priorities are
several that are intrinsic to CSCP, including: Habitat to support broadest sustainable
wildlife populations (S-1.1), Expand conservation partnerships with private
landowners (S-2.1) and Protect and enhance species at risk of becoming threatened
or endangered (S-2.1).
18


Similarly, CSCP was created consistent with USFWS Long Range Plans to
treat landowners fairly and with consideration" and to create incentives for
landowners to conserve species (USFWS, 2000, p.18). In addition, USFWS Long
Term Goal 1.2 states: Through 2005, 371 species listed under the ESA as
endangered or threatened a decade or more [will be] either stable or improving, 15
species [will be] delisted due to recovery, and the listing of 12 species at risk [will be]
unnecessary due to conservation agreements (USFWS, 2000, p. 18).
CDOW lists a number of decisions relevant to the priority status and
organization of CSCP. These include the early inclusion of CDOW biologists in
establishing CSCP priorities, proposal review criteria and project ranking, coupled
with the buy-in of all CDOW personnel through presentations and discussions with
headquarters and field staff. CDOW also put in place an extensive outreach program
that includes press releases, a website, landowner workshops and presentations to
major agricultural and land trust organizations throughout Colorado along with early
consultation with potential partners during the earliest stages of program
development. Financial support was to be secured through GOCO, LIP, land trusts
and other sources (CDOW, 2002b, p.8). Legal assurances are pledged through the
hiring of an additional staff person in the Divisions Contracts section dedicated to
handling CSCP-generated easements, management agreements and other contracts.
Finally, annual monitoring of conservation easements and management agreements
for compliance with project terms is provided for.
19


Funding
The initial budget projected for CSCP called for $25 million in funding
leveraged on a 1:1 basis between federal and non-federal funds. This projection has
since come to fruition with approximately $12.5 million in federal funds being
derived from LIP. The non-federal match has been obtained from various funds
within GOCO as well as a required 12.5 percent of assessed value contribution by
each participating landowner. Funds are used to acquire conservation easements,
provide incentives as listed in management agreements to landowners for
implementing land use practices that protect species, operating costs to implement
protection activities and endowing future stewardship costs through the Wildlife for
Future Generations Trust Fund, established within the Colorado Revised Statutes and
stewardship endowments of participating land trusts (CDOW, 2002e).
Application Process
Landowners initiate participation in CSCP after being made aware of the
program through local newspapers, information provided through their agricultural
20


organizations such as Colorado Farm Bureau and the Colorado Cattlemens
Association and by word of mouth. Landowners wishing to participate in CSCP who
have land that has species/landscapes identified for the process, can complete an
application for the proposed project (See Appendix D). Applications are reviewed
and ranked using a systematic process involving CDOW personnel and the board of
directors of GOCO. Applicants are encouraged to contact CDOW biologists in their
areas for technical assistance in completing the application.
Implementation Process
After selecting applicants that meet minimal requirements for consideration,
CDOW performs a biological inventory on the designated property under the
supervision of an assigned Area Wildlife Conservation Biologist (AWCB). From this
point forward, every step of CSCP implementation must pass through a due diligence
process (the required effort by a party to be prudent and reasonable to avoid harm to
another party) involving Colorados state comptroller and capital development
committee, corresponding state representatives and senators, county commissioners,
GOCO (see GOCO, 2003) and USFWS. Failure to make this effort is considered
negligence (Kincaid, 2006). Each project is ranked according to its biological merit
21


and how it fits into the overall objectives within the species/landscape designation.
Projects are selected by rankings and within the framework of available funding.
Next, a real estate appraisal is completed by appraisers who are certified by
the National Association of Independent Fee Appraisers (NAIFA) and meet Uniform
Standards of Professional Appraisal Practice (USPAP). Values for an easement are
determined by a formula that describes the appraised value of the property for fee title
versus what the remainder of the value will be after placing the restrictions of an
easement on the property, i.e. the appraised value of the property for an easement will
be a percentage of the total value of the property (Kincaid, 2006). In order to secure
LIP funding, a second appraisal must be done by another certified, independent
appraiser that agrees with the first one.
After the appraisals, if the landowner is satisfied with the terms of the
appraisals and the subsequent easement and is still interested in CSCP participation,
an AWCB begins negotiations with the landowner to complete a management
agreement for the property. The binding management agreement will make clear how
the land is to be managed for designated species, e.g. fencing of riparian areas, when
and how crops will be planted, fertilized and harvested; where, when, where and how
many cattle can be grazed, removal or planting of vegetation etc. This is the heart of
the CSCP implementation process and the focus of this study the process (as
opposed to outcomes) of implementation by street-level implementers on the
22


ground (CDOW Area Wildlife Conservation Biologists) an examination of the
reationship between policy, implementation and the context in which they interact.
The job description for an AWCB anticipates and reflects the skills necessary
for competent biologists as well as implementers. The position requires the employee
to help achieve the goals of the CDOW Wildlife Conservation Section that are the
conservation, preservation and management of Colorados wildlife species and their
habitats. Particular emphasis is placed on securing at-risk species and habitats such
that the need to classify them as threatened or endangered is reduced. This is
accomplished through the formation of partnerships, or other relationships with
diverse interests, both within and outside the Division of Wildlife (CDOW, 2006e, p.
2). The position description calls for the AWCB to develop and implement various
conservation and recovery plans and agreements. External interests may include
other government agencies, non-governmental organizations (NGOs), private
landowners as individuals or organizations and economic, conservation,
environmental and sportsmens organizations" (CDOW, 2006e, p. 2).
Furthermore, the description explains that the position exists to implement or
facilitate [CDOW] wildlife conservation objectives to secure populations of wildlife
with particular emphasis on threatened or endangered species, and/or species at risk
of becoming threatened or endangered, and their habitats" (CDOW, 2006e, p. 2).
Specific tasks include development and execution of various implementation and
23


operational plans, identifying and capitalizing on opportunities such as conservation
or other easements, cooperative habitat improvements on public or private lands, or
other cooperative ventures to secure wildlife populations (CDOW, 2006e, p. 2). The
position requires the AWCB to develop and manage partnerships, collaborations,
and other cooperative ventures with multiple interests and entities in accomplishing
objectives (CDOW, 2006e, p. 2). Additionally, the AWCB must be able to:
...accumulate, integrate and apply biological and other scientific
and technical information and expertise in developing and
executing local implementation plans and activities for the
conservation of various wildlife species or groups of species.
[Must] implement and/or adapt existing plans (recovery plans,
conservation agreements etc.) or programs (e.g., Cooperative
Habitat Improvement Program, Colorado Species Conservation
Partnership,Wetlands Initiative) and work with private landowners
to meet habitat and species conservation objectives. Manage
collaborations and partnerships between CDOW and various public
and private interests that are key to meeting wildlife and habitat
conservation objectives. Work within the Wildlife Conservation
Section to develop and perform post-implementation evaluations of
species/wildlife conservation projects, studies, data collection and
reports relating to species of concern and threatened and
endangered species at the regional, state and federal level...to
ensure objectives are met, or to identify needs for modifications
(CDOW, 2006e, pp. 2-3).
More specific to implementation/negotiation skills, the position description
states that the:
Area Wildlife Conservation Biologist tailors guidelines to develop
a different approach or plan to fit the circumstance. Develops and
implements plans by adapting established CDOW processes
(planning and budgeting, real estate, regulatory transplant and
24


wildlife and wildlife health protocols, etc.) to obtain support of
others in CDOW (Region and Terrestrial) and private landowners
to implement the plan. Originates models, concepts and theories
new to the professional field and state government. No guidelines
are available other than indication of legislative desires, socially or
morally accepted values and broad philosophy. Negotiate as an
official representative of one party to obtain support or cooperation
where there is no formal rule or law to fail back on. Defend and
justify an agencys position as an official representative in court
hearings (CDOW, 2006e, pp. 7-8).
Endangered Species Act Overview
This section begins with a brief overview of the provisions of this keystone
act most relevant to this dissertation the interactions between private landowners
and states. This review necessarily includes pertinent rules promulgated by the U.S.
Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service
(NMFS), as well as essential court cases requisite to an understanding of the
Endangered Species Acts (ESA) nexus with state endangered species statutes,
private property owners and the implementation of state policy programs affecting
them. Considering that the study deals with implementation in a high growth state
and habitat loss is the main cause of species endangerment, urban sprawl literature as
well as that concerning agricultural impacts on habitat loss is briefly covered.
The research problem addressed in this dissertation is the loss of threatened
and endangered species habitat on private land. Given that, and since the majority of
present and potential habitat for listed species in the United States exists on
25


nonfederal property, including state and privately-held property (Bean, 1999; USDA,
1997; USGAO, 1994), the importance of understanding the evolution of state policies
as well as executive rulemaking, revisions to the Act and court cases endemic to
private property and their nexus with states, private landowners and the habitat they
maintain is evident. In short, conservation efforts on non-federal property are
essential to the recovery and survival of many endangered, threatened, and critical
species. This section presents an overview of that evolution, and in doing so provides
a background for the rationale behind Colorado's creation of the Colorado Species
Conservation Partnership (CSCP). This is essential to examining its implementation.
Legal Aspects of ESA Implementation Nexus With Private Landowners and States
While Section 7 of the ESA, Requirements for Federal Agencies, can
occasionally restrict activities on nonfederal land, Section 9, Protecting Members of
Listed Species, is the primary tool by which such activities that affect listed species
on nonfederal land are regulated (Stanford Environmental Law Society, 2001).
Although Section 9 does not require landowners to take affirmative action to help
species, it does restrict land use by prohibiting the taking of species through
habitat modification (16 U.S.C. 5 1538 (a) (1) (B)). To take a species is to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to
engage in any such conduct (16 U.S.C. 8 1532(19)). The jeopardy prohibition in
Section 7 (a) (2) (16 U.S.C. 8 1536), requires all federal agencies considering a
26


project or action to consult with USFWS to insure that the activity is not likely to
jeopardize the continued existence of any endangered or threatened species or result
in the destruction or adverse modification of its habitat. Section 9(a) (1) (B), the
taking prohibition, applies to every person2 within the jurisdiction of the United
States and protects every member of every endangered fish and wildlife species. Even
though Section 9 mentions only endangered fish and wildlife, subsequent USFWS
rules have extended the prohibition to threatened species (U.S.C.F.R. 17.21(c) and
17.31(a)). As defined by the Act, the terms harm" and harass extend the taking
prohibition to both protected species members and their essential habitat.
The degree of protection afforded essential habitat under Section 9(a) (1) has
been greatly disputed. The Fifth and Ninth Circuit Courts have interpreted the taking
prohibition and the USFWS and NMFS regulations implementing it to include habitat
modification.3 In 1994, the District of Columbia Circuit Court invalidated USFWS
regulations including habitat modification within the definition of take,4 but the next
year that ruling was reversed by the U.S. Supreme Court in Babbit v. Sweet Home
2 Under Section 9 of the ESA a person" includes an individual, corporation, partnership, trust,
association or any other private entity; or any officer, employee, agent, department or instrumentality
of the federal government, state or municipality.
3 See Sierra Club v. Yuetter. 926 F.2d 429 (5th Cir. 1991); Palila r. Hawaii Dept, of Land and Natural
Resources, 451 F. Supp. 985 (D. Hawaii 1979) affd 639 F2d 495 (9lh Cir. 1981). '
4 See Sweet Home Chapter of Communities For a Greater Oregon v. Babbit. 17 F3d 1463 (D.C. Cir.
1994) revd. 115 S. Ct. 2407 (1995).
27


Chapter of Communities for a Greater Oregon,5 upholding USFWS authority to
promulgate regulations including 'habitat takings" within the definition of harm in
the definition of take (Cheever, et al., 1997). Justice OConnor's concurrence
called into question the scope of the original Ninth Circuit holding in Palila v. Hawaii
Department of Land and Natural Resources interpreting the meaning of habitat
taking.6 The Supreme Court opined in 1996 that their musings in Babbit did not
affect the Courts precedent in interpreting the meaning of the taking prohibition.7
The prohibition of takings (as defined in the ESA) then, can potentially preclude a
wide variety of activities on private land.
This restriction has created opposition among private landowners, most
notably the development and resource extracting industries, as evidenced by well-
publicized controversies surrounding the northern spotted owl, the Stephens
kangaroo rat, and the Mojave Desert tortoise. Also, Section 9 holds nonfederal
entities liable if they cause a take through habitat modification, assuming an
exemption has not been granted under Section 10(a), amended (under lobbying
pressure by development interests) by Congress in 1982 to include incidental takes
for nonfederal entities (Stanford Environmental Law Society, 2001).
Section 10(a) (1) (B) of the ESA, as amended by Congress in 1982, authorizes
the USFWS/NMFS to issue Incidental Take Permits, otherwise prohibited by section
5 115 S. Ct. 2407(1995).
6 115S. Ct. 2418(1995).
See Marbled Murrelet v. Babbit. 83 F.#d. 1060 (9th Cir. 1996).
28


9(a) (1) (B) if such taking is incidental to, and not the purpose of. the carrying out of
an otherwise lawful activity to any party whose actions might otherwise violate
section 9(a) (1)." Section 10(a) (2) (B) states that no permit may be issued unless the
applicant submits a conservation plan (subsequently referred to as Habitat
Conservation Plans or HCPs) to the Secretary (of Interior or Commerce depending on
USFWS or NMFS jurisdiction) for approval that specifies the impact that will likely
result from such taking.'' The plan must also specify the steps that the applicant will
take to minimize the impact, alternative actions considered and any other measures
the USFWS/NMFS considers necessary or appropriate.
The purpose of the HCP process associated with the permit is to ensure that
there is adequate minimizing and mitigating of the effects of the authorized incidental
take. The purpose of the incidental take permit is to authorize the incidental take of
species, not to authorize the activities that result in a take (Nelson, 1999). As of
December 2002, over 414 Habitat Conservation Plans had been approved addressing
more that 200 species across 30 million acres (USFWS, 2003). Both the number of
HCPs and the size and complexity of the areas they cover have increased since
implementation. Most of the earlier HCPs approved were for planning areas of less
than 1,000 acres. However, since September 2001, several pending as well as
approved HCPs have been in the 10,000 to upwards of 1 million acre range (USFWS,
2003).
29


The USFWS and the NMFS have developed several policies to give economic
and regulatory assurances on the overall costs of species conservation and mitigation.
These policies include incentives for nonfederal property owners to make use of the
HCP approach and to assure landowners as well as the financial and development
communities that an incidental take permit will remain in effect for the lifetime of the
project. These incentives were created to at least partly mollify any unintended
consequences of HCPs. Included in these policies are the No Surprises Policy, Safe
Harbor Agreements. Candidate Conservation Agreements with Assurances for
Nonfederal Property Owners and Incentive Funds and Grants. A brief overview of
each follows.
The Services originally codified the No Surprises Policy as a final rule in the
February 23, 1998 Federal Register and most recently revised the rule in October,
2001.8 The policy states that an incidental take permittee will not be required to
provide additional mitigation in the future beyond what was agreed to in the HCP
even if circumstances change, provided that the affected species were adequately
covered and the permittee was properly implementing the HCP.
Safe Harbor Agreements were codified June 17, 19999 as voluntary
agreements between USFWS/NMFS and cooperating nonfederal (state and private)
landowners designed to benefit endangered and threatened species while giving
landowners assurances from additional restrictions. Following development of such
8 See C.F.R. 17.22 and 1732.
9 See C.F.R. 17.22 and 17.32.
30


an agreement, the Service issues an enhancement of survival permit to authorize
any necessary future incidental take to provide participating landowners with
assurances that no additional restrictions will be imposed as a result of their
conservation actions. The enhancement of survival permit allows the landowner to
use their property in any otherwise legal manner that does not move it below baseline
conditions, described in terms appropriate for the target or covered species, such as
number and location of individuals, if such a number can be determined. The most
common method is simply measure of habitat.
The main purpose of Safe Harbor Agreements is to avoid unintended
consequences of the ESA by promoting voluntary management and habitat restoration
for listed species on nonfederal property while giving assurances to participating
landowners that no additional future regulatory restrictions will be imposed. Any
nonfederal landowner can request the development of a Safe Harbor Agreement that
represents an agreement between the landowner and the Service and/or other
stakeholders such as state natural resource agencies, Tribal or local governments,
conservation organizations and businesses. These stakeholders can, at the
landowners request, participate in many ways in the development phases of the
agreement. However, the assurances only apply to the participating landowners and
for lawful activities within the enrolled lands.
Statewide, local and nongovernmental conservation organization agreements
are instruments also provided for under the Safe Harbor Policy that authorizes these
31


entities to implement the program. The appropriate Service provides a permit to the
governmental unit or conservation organization that can then offer individual
landowners authorizations through a certificate of inclusion. To date, over 200
Safe Harbor Agreements (of all varieties) affecting over three million acres
nationwide had been signed (USFWS, 2006b).
Candidate Conservation Agreements with Assurances are formal agreements
between the controlling Service and one or more parties that gives incentives to
private property owners to address the conservation needs of proposed or candidate
species, or species likely to become candidates, before they become listed as
endangered or threatened. Participants voluntarily commit to manage their lands or
waters to remove threats to candidate or proposed species by implementing specific
actions that will remove or reduce the threats to those species, thereby contributing to
stabilizing or restoring the species so that listing is no longer necessary. These
service agreements with nonfederal property owners provide assurances that their
conservation efforts will not result in future regulatory obligations, even in the event
that a species included in the agreement, in excess of those they agree to at the time
they enter into the agreement, is subsequently listed as threatened or endangered
(USFWS, 2003).
The Services provide technical assistance in developing the agreements in
order to help the property owners protect, enhance, restore, or create new wildlife
habitat. The management activities included in the agreement must significantly
32


contribute to elimination of the need to list the target species. Although a single
property owner's activities alone may not be sufficient to eliminate the need to list,
the activities, if conducted by other property owners on other necessary properties
throughout the range of the species, must be sufficient in order to eliminate the need
to list. Ultimately, the goal of Candidate Conservation Agreements with Assurances
is to remove enough threats to the target species that the need for protection under the
ESA is thereby eliminated. Before one of the Services enters into any such
agreement, it makes a written finding that the species included in the agreement will
receive a sufficient conservation benefit from the activities conducted under the
agreement. The rules recognize that the landowner is under no obligation to avoid a
take while a species is a candidate and the assessment of benefits would include
consideration for what the property owner agrees not to do as well as any
enhancement measures they agree to undertake (USFWS, 2003).
A variety of incentive funds and grants are available under the ESA to help
states, territories and landowners plan and implement projects to conserve species.
The Cooperative Endangered Species Conservation Fund under the auspices of ESA
Section 6 has been available for several years to provide grants to states and
territories to participate in a wide array of voluntary conservation projects for
candidate, proposed and listed species.
An additional grant program, the Private Stewardship Program, was initiated
in 2002 and funded in fiscal year 2003, through the Land and Water Conservation
33


Fund to respond to the burgeoning interest shown by landowners in managing their
lands in ways that benefit species and their habitats (USFWS, 2006). The Private
Stewardship Program dispenses grants and other assistance on a competitive basis to
individuals and groups engaged in local, private, and voluntary conservation efforts
that benefit federally listed, proposed, candidate or other at-risk species. A diverse
panel of representatives from federal and state governments, conservation
organizations, agricultural and development interests as well as the science
community assess applications and make recommendations to the Secretary of
Interior who awards the grants to private landowners and the their nonfederal partners
(USFWS, 2006). Finally, and most relevant to this study, the Landowner Incentive
Program (LIP) was authorized by Congress in FY 2002 to provide technical and
financial assistance to private landowners who are willing to partner with their states
or Tribes to maintain and enhance habitat for at-risk species (USFWS, 2005a).
Delisting and Downlisting Species under Section 4 of the ESA
Delisting is the ultimate goal of the ESA, and where applicable, the goal of the
Colorado Species Conservation Partnership. The ultimate goal of CSCP is to prevent
the necessity of listing a species under the ESA in the first place. The USFWS
regards delisting as the removal of species from federal lists of endangered and
threatened wildlife and plants while downlisting refers to the reclassification of a
species from Endangered to Threatened and results from successful recovery
34


efforts (USFWS, 2003). For a species to be delisted, the USFWS must determine that
the species is not threatened based on a number of factors such as population size,
recruitment, stability of habitat quality and quantity and the control or elimination of
threats. If some threats to the species have been reduced, USFWS may consider
changing the species status from Endangered to Threatened.
When a recovery plans goals, as developed by the FWS and stakeholders, are
met and delisting or downlisting is warranted, USFWS follows a process similar to
Section 4 requirements for listing a species. With assistance from species experts
inside and outside of USFWS, the species population and recovery achievements are
assessed, as are existing threats. The assessment is based on five factors:
Is there a present or threatened destruction, modification, or curtailment
of species habitat or range?
Is species subject to over-utilization for commercial, recreational, scientific,
or educational purposes?
Is disease or predation a factor?
Are there inadequate existing regulatory mechanisms in place outside the
ESA taking into account the efforts by the states and other organizations to
protect the species or habitat)?
Are other natural or manmade factors affecting its continued existence?
(USFWS, 2003)
35


If and when USFWS determines that threats to the species have been sufficiently
reduced, it considers downlisting or delisting by proposing the action in the Federal
Register. At that time, opinions are sought from independent species experts, other
federal agencies, affected states' biologists, and the public. The opinions are
considered, the proposed action is taken or the status quo maintained. The final
decision is published in the Federal Register.
This section has provided an overview of key parts and relevant rules of the
ESA that pertain to private property and the habitat contained therein. It has also
given a brief summary of crucial court cases that have consistently sided with the
protection of threatened and endangered species and their habitat, even when on
private property. When considered in conjunction with the literature concerning
federalism and ESA implementation, covered later in the Review of Literature
chapter, knowledge of these legal aspects of the ESA and their nexus with private
landowners and states is essential to understanding the conception and
implementation of CSCP.
Habitat Loss
Considering that this dissertation examines the implementation of a program
in a rapidly populating and developing state that seeks to protect the habitat of
threatened and endangered species, it is essential to review the literature concerning
habitat loss since it is the major contributor to species imperilment in the United
36


States (Sierra Club, 2004; Endangeredspecie.com, 2002; National Wildlife
Federation, 2001; Stanford Environmental Law Society, 2001; Shogren, 1998).
Wilcove, et al. (1998) discovered that the most overt and widespread forms of
habitat destruction or alteration are also the leading threats to species that are listed or
proposed for listing as measured by the number of species they affect. The top two
forms of habitat destruction are agriculture (affecting 38 percent of endangered or
threatened species) along with urban and exurban development (affecting 35 percent
of endangered or threatened species). Habitat loss, through urban or exurban sprawl
and agriculture, is associated in more cases of endangerment than any other pair of
causes, most likely a product of the drastic modification of habitat at the urban-rural
interface (Czech et al., 2000). The following section concentrates on literature
concerning the destruction of habitat through urban/exurban sprawl and agricultural
activities, especially as they affect Colorado.
Urban and Exurban Sprawl
There has been a proliferation of literature concerning the urban and exurban
sprawl phenomenon in the last ten years. A general Internet search using urban
sprawl, and exurban sprawl as keywords yields thousands of hits. University
libraries, academic and legal databases yield hundreds more. Environmental,
business and planning web sites contribute to this vast array of literature, most all of
which claim to have an answer to, or excuse for, sprawl. In short, no literature review
37


of this vast topic could be complete. For the purposes of this thesis since the lack of
policies addressing urban sprawl is one significant reason for state ESA-related
programs affecting private land a brief review of literature providing operational
definitions of urban and exurban sprawl, their impacts on endangered species and a
brief overview of the two leading theories associated with the phenomena is
sufficient.
Although there are many definitions of urban and exurban sprawl, mostly by
local context, this dissertation uses Burchell et al. (2000, p. 2) to define urban sprawl
as: "low-density, leapfrog development that is characterized by unlimited, outward
expansion." Scholars are in general agreement that exurban sprawl is defined as a
mixture of very low density subdivisions, estates, manufactured homes and farm
buildings (Davis et al., 1994) that typically generate fewer local government revenues
than it costs to serve (Burchell, 2002) and are inhabited by residents willing to drive
their automobiles vast distance for service, whether or not alternative transportation is
available (Nelson & Sanchez, 1999; Sanchez & Nelson, 1997). Additionally, exurban
sprawl is usually dominated by scattered, non-farm residential dwellings in
predominantly agricultural and forested areas located beyond the suburbs of cities and
includes the division of agricultural lands into thirty-five acre ranchettes (Barnes,
Morgan et al., 2001), has adverse effects on wildlife (Maestas, Knight et al., 2003;
Mitchell, Knight et al.. 2002; Knight & Wallace et al., 1995; Wallace & Knight,
38


1993) and is a growing phenomenon in Colorado (Kincaid, 2004; Southern Rockies
Ecosystem Project, 2004; Mitchell, Knight et al., 2002).
Since 1970, Colorados population has increased from 2.2 million to 4.7
million people. It is expected to climb past 7 million by 2030, fueling the growth of
the development footprint on the state from 1.3 million acres in 1970 to 2.5 million
acres in 2000 and a projected 3.5 million acres by 2030, much of it in the form of
exurban sprawl (parcels of 1.7 to 40 acres) (Colorado Conservation Trust, 2005).
This sort of sprawl has a footprint five to ten times the amount of land as urban and
suburban development throughout the West (Theobald, 2004). The size of this
footprint and its tangential impacts explains why many scholars (Maestas, Knight et
al., 2003; Mitchell, Knight et al., 2002; Knight & Wallace et al., 1995; Wallace &
Knight, 1993) view exurban development as a bigger threat to wildlife habitat than
more compact urban and suburban developments since the wider ranging footprint
impacts more habitat.
The negative impacts of urban and exurban sprawl on ecosystems and species
is actually much greater than the total acreage directly developed and extends far
beyond the last line of development. Although it can provide affordable housing, the
most obvious impact of sprawl on wildlife is habitat fragmentation resulting in the
disruption or termination of wildlife migration that prevents healthy foraging and
breeding opportunities. Unfortunately, the most desirable areas for development tend
39


to be in low-to mid-elevation ecosystems and along riparian areas, generally the most
biologically rich and crucial for native wildlife species (Southern Rockies Ecosystem
Project, 2004). Furthermore, developed areas also create disturbance zones that can
extend far beyond the actual area of development due to factors such as household pet
predation, spreading noxious weeds, increases in aggressive, human-adapted species
(e.g. raccoons, skunks and starlings), the introduction of attractions detrimental to
wildlife (e.g. trash cans) and increases in recreational activities surrounding
developed areas (Mitchell & Knight, 2002; Knight & Mitchell, 1997; Knight &
Wallace et al., 1995).
Exurban properties are often overgrazed and threatened by wildfires and when
compared with intact ranchlands and protected landscapes, biodiversity is in far worse
shape. Such developments have the weediest flora and attract carnivores and birds
that are characteristic in suburban developments. Native songbirds such as vesper
sparrows and towhees are replaced by magpies and robins while predators such as
bobcats and badgers begin to disappear. Sightings of native species that exurban
homeowners claim are evidence of an innocuous impact on the landscape are actually
anomalies of species slowly leaving an area (Knight, 2004). Finally, urban and
exurban sprawl leads to increased water consumption and water pollution creating
obvious repercussions for wetlands, rivers, streams, lakes and reservoirs and all the
species that rely on them (Bollier, 1998).
40


Urban and exurban sprawl, in and of themselves, are not the problem in
wildlife habitat encroachment. The problem is rather, the combination of a
patchwork of multiple state and local jurisdictions that codify land use regulations.
Coupled with government subsidies, tax policies and zoning regulations usually
designed to stimulate economic development and a lack of coherent, centralized
governance to address the issue: sprawl is the result, not the problem. The puzzles of
centralized versus decentralized land use governance and free market supply and
demand versus government intervention add even more complexity (Steelman, 2000).
Urban and exurban sprawl is market driven and usually considered a leading
indicator (although defined differently for such purposes) of a healthy, vibrant
economy that provides jobs, investment opportunities and affordable housing for a
mobile, expanding population. As pointed out by economists Alan Alshuler and Jose
Gomez-Ibanez (1993, p. iv):
Throughout American History, the most consistent theme in local
governance has been the pursuit of growth: more people, more jobs
and more real estate development. Local democracy has been dominated
by growth coalitions, composed of individuals and enterprises with
a direct stake in real estate development.
This pro-development cohort and its activities are best characterized as a
political-economic alliance, or what Molotch (1976) refers to as the Growth Machine.
The concept of the growth machine helps make sense of the various political and
economic constituencies that act in their common financial interests to perpetuate
growth in and around cities (Fodor, 1999). The machine is powered by the business
41


interests of landowners, real estate developers, mortgage bankers, realtors,
construction companies, building material suppliers and contractors, all of whom
have a common economic interest in promoting local growth. They tend to be
politically organized, politically connected and wealthy (Fodor, 1999). The theory
characterizes local residents as being harmed because disproportionate amounts of
benefits are garnered by a few, often times, non-local elites.
Similarly, regime theory uses a political economy approach to characterize
local land development policy as being dominated by developers and government
leaders (Ramsay, 1996). The theory assigns central importance to the informal
process of collaboration between investment capital and governmental authority
(Williams, 1999).
Agricultural Activities
Like urban and exurban sprawl, agricultural activities on both cropland (e.g.
wheat fields) and pasture/rangeland have caused significant and extensive
transformation of wildlife habitat throughout the United States. The distinction
between these two types of agriculture is important. Cropland constitutes a complete
conversion of native ecosystems that in certain cases such as black-tailed prairie
dog habitat (Colorado Division of Wildlife, 2002c; McCain, Reading & Miller, 2000)
- results in natural habitat loss. In contrast, rangeland use modifies, but does not
typically convert, native ecosystems and may still provide significant wildlife habitat
42


(Southern Rockies Ecosystem Project. 2004). It must be noted that landowner
intervention can, and indeed has e.g. the mountain plover in Colorado mitigated
harmful effects of crop production on wildlife habitat through adaptive management
plans (Kincaid, 2004; Colorado Division of Wildlife, 2003a) such as avoiding known
breeding and nesting habitat when tilling and harvesting. Such mitigation is one of
the goals of CSCP.
Much, if not most, cropland occurs on lower elevation private lands, typically
in productive valley bottoms which contain (just as in the case of urban sprawl) the
most biologically diverse habitats such as riparian areas and wetlands (Southern
Rockies Ecosystem Project, 2004). Ranches obviously need water and thus tend to be
established near wildlife-rich areas. While many ranchers are good stewards of the
land and large intact ranches increasingly provide critical open-space habitat for
wildlife, grazing may also have negative impacts on ecosystems and the wildlife
within them. It is estimated that livestock grazing in the United States has been a
factor in the imperilment status of 33 percent and 14 percent of the federally listed
threatened and endangered plant and animal species (Wilcove et al., 1998)
respectively.
Briefly stated, the main reasons that grazing has such a profound impact on
imperiled species is the competition with native herbivores for forage, water and
space (Peek & Dalke, 1982). Livestock grazing likely reduces the overall density and
biomass of native grasses and can cause changes in plant community composition by
43


reducing more edible plant species while simultaneously increasing less edible plant
species (Fleischner, 1994). Human modification of landscapes and their native
wildlife for the purpose of livestock grazing has negative impacts on native
ecosystems and their resident species (Southern Rockies Ecosystem Project, 2004).
As examples, native species such as prairie dogs and coyotes are routinely
exterminated as pests and once-prominent predators such as wolves and grizzly bears
were systematically extirpated from entire regions in the early 20th century, in part to
protect livestock from predation (Fitzgerald, et al., 1994). Lack of predation has led
to unnaturally large herbivore populations that have, in turn, led to overgrazing of and
damage to native vegetation.
The construction of fences to control livestock can also contribute to habitat
fragmentation (Southern Rockies Ecosystem Project. 2004). The foregoing
discussion notwithstanding, the preservation of working agricultural lands is far more
preferable and beneficial to the preservation of threatened and endangered species
than development (Maestas, Knight et al. 2003; Alexander & Propst, 2002;
Morrisette, 2001).
Writing about the entire Rocky Mountain West, Knight (2005), points out that
protected areas alone cannot sustain native biodiversity and makes it clear that private
lands are essential to the preservation of biodiversity. Research also indicates that
large-scale, intact ranches support and protect wildlife and are important for
protecting biodiversity, including threatened and endangered species (Maestas,
44


Knight et al., 2003; Mitchell, Knight et al., 2002). Furthermore, because privately
owned ranches are often located on highly productive, low elevation sites (Scott et al.,
2001), development of these lands can be very detrimental to wildlife, and
significantly, exurban development has negative consequences on native biotic
communities (Maestas, Knight et al. 2003). Cumulatively, these findings stress the
importance of conserving intact ranchlands for biodiversity protection, typically
through tools such as conservation easements and other incentives that restrict
development but allow crop and livestock production to continue (Alexander &
Propst, 2002; Morrisette, 2001).
This section synthesized literature that clearly concludes urban/exurban
development and agriculture are the major contributors to habitat loss and
imperilment in the United States. The Colorado Species Conservation Partnership is
a voluntary environmental program created in direct response to this imperilment.
Summary
This chapter has provided an overview of CSCP, summarizing its objectives
and projected benefits as originally conceptualized by CDOW. It reviewed the
statutory authority for the program along with its funding mechanisms, application
process and plans for implementation. Finally, an overview of the Endangered
Species Act and the legal aspects surrounding its implementation, especially those
aspects that involve interaction with private landowners and states and the loss of
45


wildlife habitat through agricultural activities and urban/exurban sprawl was
provided.
Since its original passage in 1973 as an arguably stringent, command-and-
control statute, the ESA, with a few exceptions, has evolved through legislative
revision, executive rulemaking and judicial mandate into a more flexible instrument
that takes into account the need for consideration of private property rights and
landowner interests and incentives. A more cooperative relationship between federal,
state and local governments and landowners in the pursuit of species preservation has
been the result. Legislative revisions of the ESA and attendant rulemaking
subsequent to its original passage in 1973 have been crafted in large part to encourage
private landowner preservation of critical, threatened and endangered wildlife habitat.
Next, it was established that privately held habitat is essential to endangered,
threatened and critical species survival. Habitat loss, primarily through urban sprawl,
exurban sprawl, and subdivision of land into thirty five acre ranchettes, along with
agriculture and related economic activities are associated in more cases of species
endangerment than any other causes. However, agricultural activity, especially when
the land remains untilled and/or is mitigated for the benefit of species, usually
through the implementation of state and federal program incentives, is far less
harmful than development and adds value to its habitat capability while allowing
economic activities to continue.
46


It is now appropriate to present a review of the literature relevant to the study
in Chapter 3. This includes literature concerning voluntary environmental programs
and public/private partnerships in land conservation focusing on land trusts and
conservation easements. Chapter 3 concludes with a review' of the alternative dispute
resolution literature especially negotiation and the broad literature of policy
implementation history, process, measurement, incentives and the role of federalism.
47


CHAPTER 3
REVIEW OF LITERATURE
Introduction
There appears to be relatively little scholarly literature focusing specifically
on elements of successful implementation of Endangered Species Act-related,
voluntary habitat preservation policies in high growth states. However, there does
exist, in carefully selected component areas, a vast literature focused around this
study's research problem that is relevant to bounding, as well as understanding and
articulating the purpose of this study. This selective review of literature lends itself
well to the study's inductive, qualitative research design in that it attempts to focus
and bound the collection of data by avoiding design extremes. The looser the initial
design, the higher the costs and chances of information overload would be. If the
initial design is made too tight, there is the risk of losing case sensitivity and bending
data out of contextual shape" (Miles & Huberman, 1994).
Hence, the literary components selected for this study necessarily include 1)
voluntary environmental programs, 2) public/private partnerships in land
conservation, focusing on land trusts and conservation easements, 3) alternative
48


dispute resolution especially negotiation, and 4) the broad framework of policy
implementation history, process, measurement, incentives and the role of federalism.
First, the relatively recent, expanding literature related to voluntary
environmental programs is reviewed to understand the institutional activities that
support or deny the voluntary participation of landowners in the Colorado Species
Conservation Partnership (CSCP). The negotiation literature is then examined in
order to clarify the very process upon which the implementation of CSCP is
dependent.
Next, the policy implementation literature is reviewed, including a
background of why and how the policy sciences in general and implementation in
particular, are important in endangered species recovery programs. Next, the history
and scholarly evolution of policy implementation studies, definitions, complexity and
success measurement are reviewed. Finally, the role incentives play in
implementation, federalism, and other conceivably important contextual elements in
implementing state policies for the preservation of at-risk species habitat is reviewed
so that a rationale for, and a narrowing of, the research design, as discussed above,
can take form.
Voluntary Environmental Programs
A growing literature is emerging concerning Voluntary Environmental
Programs (VEPs) that with the exception of recent interest in service-based industries,
49


has been focused mostly on studies within industrial-based, manufacturing
organizations engaged in activities potentially harmful to the environment. Although
not specifically related to land preservation or endangered species, the VEP literature
offers valuable theoretical insights into institutional activities that deny or support
voluntary environmental activities.
The literature clearly states that VEPs encourage stakeholder involvement
and is critical of traditional command and control regulatory approaches that often
fail to implement or monitor their mandates adequately, thus failing to achieve their
environmental objectives. VEPs attempt to supplant command and control
approaches while meeting self-determined environmental target goals that exceed
regulatory standards and leave a great deal of room for discretion (Carmin et al..
2003; Segersen & Miceli, 1998). All of these characteristics are present in CSCP.
A broad, historical framework is helpful in understanding the evolutionary
movement in environmental policy from a resistance to early command and control
environmental regulation, to voluntary environmental compliance and beyond to
voluntary programs often exceeding regulatory standards. Mazmanian and Kraft
(1999) provide a succinct table of three epochs around which they explain the
evolution of the voluntary environmental program movement. The first epoch begins
in the early 1970s with the rise of environmentalism as a social and political
movement and the buildup of a system of federal command-and-control
50


environmental legislation and resultant rules highlighted by clean air and water
legislation and the creation of the Environmental Protection Agency.
The second epoch, beginning in the early 1980s, was marked by a drive for
flexibility and efficiency in the regulatory apparatus created in the first epoch. This
epoch is viewed as a bridging one in which market-based and collaborative
mechanisms using cost-effectiveness tests were moved from federal implementation
and enforcement and entrusted to state and local levels. Regulatory and market
pressure, along with public relations considerations in which the public expected
improvement in environmental performance were all characteristics of this epoch
(Schot & Fischer, 1993). To explain the environmental behavior of firms, theoretical
perspectives were offered in this period. They include a wide array of organizational
theories (Gladwin in Schot & Fischer, 1993) such as psychoanalytic psychology that
purports to analyze different personality structures of individuals who took unusual
initiative in the interest of environmental responsibility, along those who did not
(Everett, Mack & Oresick in Schot & Fischer. 1993). Another theory neo-
institutionalism offers an evolutionary perspective that attempts to explain why
companies develop new, or adopt cleaner technologies (Kemp in Schot & Fischer,
1993).
The third epoch, from about 1990 to the present and beyond, is identified as a
movement toward sustainable communities, bringing into harmony human and
natural systems on a sustainable basis through various experiments with new
51


approaches (Mazmanian & Kraft, 1999). Using an institutional framework for
understanding corporate environmentalism in the petroleum and chemical industries,
Andrew J. Hoffman (2001) has concluded that environmental management or
sustainable development cannot be considered in an isolated context, conducted in a
vacuum or developed autonomously, but rather is mediated by context, culture and
history of the institutional environment. Applying the metaphor of heresy to
dogma, Hoffman (2001) demonstrates that although historically voluntary corporate
interest in greening would have been unthinkable (heresy), it has become standard
practice (dogma) not only dependent on costs and regulations, but on the full social,
political and economic system of which industry is a part (p. 197).
However, Rivera and deLeon (2004, p. 434) conclude that ski areas
participating in voluntary environmental programs appear to be displaying rather
opportunistic behavior expecting to improve their green reputation without actually
implementing the prescribed environmental program beyond compliance
environmental management principles and practices. This, they note, is free riding
behavior (Rivera and deLeon, 2004). Moon (2005) similarly concludes that larger
firms and firms with proximate consumer relations are more likely to participate in
VEPs to improve their green image and achieve competitive market advantages.
More relevant to this dissertation, Wunderlich (2002), framing his study within a new
institutional economics framework, found, among other things, that land trusts with
52


active community outreach and education programs who receive external government
support and do not actively solicit landowners to donate easements are most effective.
Finally, Vig and Kraft (2000 & 2003), wrapping voluntary environmental
programs in the context of sustainable development, carefully lay out how major
environmental issues will have to be, at least partially, solved through volunteerism
and incentives. Especially concerning endangered species, habitat protection and
suburban sprawl, they predict (p. 376) that resolutions to these problems are being,
and must continue to be, addressed through community-based environmental
protection involving common visioning through voluntary partnerships involving
government, business and citizen groups.
The Colorado Division of Wildlife has collaboratively incorporated each of
the third epoch VEP characteristics into CSCP, especially an experimental approach
and the idea that environmental management and sustainable development must be
incorporated into the voluntary method of preserving habitat for threatened and
endangered species. The Partnership also addresses the habitat loss problem through
community-based environmental protection.
Public/Private Partnerships in Land Conservation
Beginning in the 1970s, innovative state and federal agencies began looking to
a few entrepreneurial nonprofit organizations to preserve land for wildlife habitat,
open space, public recreation and agricultural purposes. In the 1980s, this modest
53


effort exploded nationwide involving every major federal landowning agency, all
fifty states, several hundred localities and hundreds of private land protection
organizations across the country. Now it is almost the exception if significant land
| acquisition is accomplished without a partner from the private sector and one from
|
| the public sector, if not more than one from each side (Lincoln Institute of Land
| Policy, 1993, p. 3).
j
Today, millions of acres of land in the United States (as well as around the
world) have been protected from development through public/private partnerships.
These arrangements usually involve local, state and federal government entities
working together with nonprofit international, national, state or local conservation
nonprofits, usually land trusts. The Colorado Species Conservation Partnership is
such an arrangement in that it involves a working relationship between the U.S. Fish
i
and Wildlife Service (USFWS), part of the Department of Interior, the Colorado
Division of Wildlife ((CDOW), Great Outdoors Colorado (GOCO) and private, non-
profit land trusts. Thus, a review of the literature concerning this partnership, its
funding mechanism and primary land conservation tool, the easement, follows.
The Lincoln Institute of Land Policy (1993) has identified several reasons
why government turns to nonprofit land conservation organizations and why, in turn,
these organizations need government to accomplish their mission of land
preservation. Parts of each fit the mission of CSCP. First, nonprofit land trusts bring
agility to conservation projects, meaning that speed, securing of funds, flexibility
54


and access to financial instruments are more readily available to a non-profit
organization unencumbered by bureaucratic delays and constraining laws and
regulations. Second, non-profit organizations are more likely to create an
atmosphere of possibility in the eyes of private landowners since they have no
condemnation authority, have the ability to leverage private funds or land donations
and can often raise large sums of money quickly to close preventive funding gaps.
Third, nonprofit, private conservation organizations provide staff not only to
complete surveying, document preparation, negotiation and closing tasks; they also
provide maintenance crews to care for the land once it is purchased. Finally, non-
profit organizations are better able than government entities to secure public support
for funding land protection through tax deductible contributions to their respective
organizations, or by campaigning to pass public referenda, initiatives, bond issues and
other public instruments dedicated to land conservation.
Nonprofit conservation organizations need government(s) primarily to secure
large sums of funding that they alone cannot raise in order to conserve land through
easements, outright purchase or combinations thereof. As these organizations move
toward landscape-scale preservation instead of focusing just on individual parcels,
government partnerships become essential in order to coordinate and manage the
multiple political jurisdictions that such landscapes often encompass. Finally,
government planning documents are more readily accessible when cordial
55


relationships have been established between land trusts and government regulators
(Lincoln Institute of Land Policy, 1993).
Land Trusts
A land trust is a nonprofit organization that, as all or part of its mission,
actively works to protect land by undertaking or assisting in land or conservation
easement acquisition, or by stewardship of such land or easements" (Land Trust
Alliance, 2005, p. 1). A trust comes into existence when three elements are present:
a trust property, a beneficiary and the intent of the owner of the trust property to
create a trust (Fairfax & Guenzler, 2001, p. 27). Land trusts are closely tied to the
communities they operate in and their nonprofit status brings a variety of tax benefits.
Participating landowners may qualify for income, estate or gift tax savings.
Organized as charitable organizations under federal tax laws, land trusts usually
purchase land for permanent protection, accept land donations or accept the donation
or purchase of a conservation easement, permanently limiting the type and scope of
development that can take place on the land (Land Trust Alliance, 2005). Lastly, land
trusts regularly acquire land or easements that are reconveyed to another public or
private institution (Fairfax & Guenzler, 2001).
Once trusts are established, their administration is relatively simple and is
focused primarily on ensuring that the trustees do not enrich themselves or others
56


with trust resources but rather use them exclusively to achieve the purpose of the
trust. They are normally organized under six guiding principles: clarity,
accountability, perpetuity, enforceability, prudence and changing or terminating a
trust (Fairfax & Guenzler, 2001).
Clarity involves undivided loyalty which means the trustee is obligated to
use and manage trust resources exclusively for the benefit of the designated
beneficiary or beneficiaries. Accountability requires full disclosure of financial
transactions to the beneficiary under the assumption that trustees know more about
business principles and trust affairs than does the beneficiary. Trusts can be created
in perpetuity or for a specific term. Most conservation organizations aim for
perpetual protection of land but often times embrace shorter term agreements with
hopes of improving provisions at the expiration of the agreement. Trustees duties
are obligatory and legally enforceable in that the beneficiary is entitled to sue a
trustee in order to enforce the principle of undivided loyalty or any other obligation of
the trustee. Financially and politically, prudence is a key element in trustee decision
making and requires diversification of trust resources and analysis of appropriate
degrees of risk given the goals of the trust (Souder & Fairfax, 1997), as well as
creation of a political environment conducive to carrying out trust purposes. The
terms of a trust cannot be altered by the trustee or beneficiary unless the original
agreement contains specific provisions for doing so. Absent such provision, the trust
57


is unchangeable unless an implausible event such that the trust purposes are no longer
possible to achieve, have been achieved or are no longer relevant.
Land trusts such as the worldwide Nature Conservancy and hundreds of
smaller, community-based non-profit organizations are increasingly playing a larger
role in private habitat conservation by providing incentives to conserve privately held
(usually working) lands, especially through conservation easements. These
easements are often used exclusively to protect endangered species (Kincaid, 2004;
Martens, 1992). Land trusts and land trust facilitators (organizations that match
parties interested in land preservation) such as the Ranchland League in the Gunnison
basin are regular partners in the agreements examined in this research and provided
respondents for participant interviews. Research indicates that land trusts offer potent
solutions to protecting valuable natural assets of the landowners as w'ell as threatened
and endangered species that exist on private property (Wunderlich, 2002).
Furthermore, a strong association between land trust effectiveness and social
networks among those involved has been discovered, seemingly enhancing the
possibilities of voluntary landowner participation in private habitat protection
programs (Wunderlich, 2002).
58


Conservation Easements
Conservation easements have become effective tools for protecting landscapes
(Squires, 2000, in Gustanski & Squires). Such easements run with the land, are
encumbrances to the title and are nonpossessory. When using easements, private
landowners decide to protect their land by conveying some of their rights to use the
land to a nonprofit organization or government agency that is, in turn, responsible for
ensuring that the requirements of the easement are fulfilled (Bruce & Ely, 1995).
They decide to do so because the benefits they strive to realize exceed the costs
involved or the restrictions placed upon their land use activities. Although primary
benefits are economic, the main motivators for placing land under a conservation
easement are often intangible, e.g. the satisfaction of preserving open space and/or
wildlife habitat. Land placed under a conservation easement is considered a public
benefit and as such receives the support of multiple jurisdictions, provides
landowners with income and/or estate and/or property tax relief in return for
conveying their property rights, which, of course entails that communities pay for
those rights in the form of lost government income (Squires, 2000, in Gustanski &
Squires, p. xxi).
The genius of conservation easements lies in their ability to persuade
landowners to protect their land and all of its inherent ecological value through
financial incentives, while not requiring the conveyance of any real property rights,
but merely compensating the landowners for exercising them in a particular way.
59


Easements, then, can allow land to remain in private ownership while the owner is
still able both to utilize all its potential for income generation and also to
simultaneously protect ecological assets and limit public access. Additionally, land
placed under easement and remaining in private ownership stays on the real property
tax rolls, albeit at a lower assessed value, while the easement, a nonpossessory
interest in the land, is conveyed to a nonprofit organization or government agency
that has protection of the land as its primary goal. Diehl and Barrett (1988, p. 2)
succinctly summarize the utility of conservation easements with the following
observation:
Conservation easements occupy an appealing niche in the
array of land protection techniques halfway between out-
right public or nonprofit ownership, at one extreme and
government land-use regulation at the other. Easements are
more permanent and often restrictive than land use regulation,
which can shift with the political winds. At the same time,
easements are tailored to the protection requirements
of the particular property and to the desires of the individual
landowner. Easements keep property in private hands and on
tax rolls, and also carry a lower initial price tag than outright
acquisition.
Beginning in the 1960s, led by California, New York, Connecticut and
Massachusetts, states began enacting legislation dealing with conservation easements.
Early statutes, including Colorados, dealt with defining what easements were, how
they could be created and proclaimed their validity even though they were in gross
(benefiting the public at large, rather than benefiting an adjacent or nearby property,
as does an appurtenant easement). By the late 1970s, states without (or with
60


inadequate) easement statutes looked to the National Conference of Commissioners
on Uniform State Laws to create a model conservation easement act known as the
Uniform Conservation Easement Act (UCEA), which was passed in 1981 (Gustanski,
1988).
The Colorado General Assembly enacted, and Richard Lamm a progressive,
Democratic governor signed into law, a Conservation Easement Act in 1976
requiring that any nongovernmental entity be in existence for at least two years before
being eligible to accept conservation easements.10 11 Following a steady influx of new
! residents pouring into Colorado throughout the 1980s, 1990s and into the early 2000s
I
that led to an estimated 100,000 acres of agricultural and open space land being lost
i to development each year (Colorado Environmental Coalition, 2005), additional
conservation easement legislation was passed, including a repeal of the two-year
requirement mentioned above as long as the nongovernmental entity (land trust) is
structured as a charitable organization exempt under section 501 (c) (3) of the Internal
Revenue Code." This allows more land to be preserved by legitimate, new land
trusts before a two year waiting period expires.
In 1992, a citizen initiative added Article 27 to the Colorado constitution
allowing state lottery dollars to be dedicated to the Great Outdoors Colorado Trust
Fund (GOCO) for preserving, protecting and enhancing the states wildlife, parks,
rivers, trails and open spaces (Colorado Constitution, Article XXVII). Most
10 Colorado Revised Statutes § 38-30.5-101-103.
11 Colorado Revised Statutes §38-30.5-104.
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significantly. Section 1 (a) (IV) of Article XXVII mandates funds be spent for
protection of crucial wildlife habitat through the acquisition of lands, leases or
easements and restores critical wildlife areas. The article requires lottery proceeds to
be distributed over four areas in substantially equal portions over time and disbursed
through seven grant programs including Legacy, Local Government, Wildlife, Open
Space, Colorado State Parks, Trails, Planning and Capacity Building. Since inception
in 1993, GOCO has awarded over $489 million in grants for 2,100 projects with well
over $100 million of that total spent on wildlife-specific programs to preserve over
300,000 acres of open space and wildlife habitat through outright purchase and third
party conservation easements.
Through Legacy grants, nonprofit land conservation organizations receive
funding for placing land, including critical wildlife habitat, under conservation
easement (Great Outdoors Colorado, 2005). These GOCO Legacy grants, in
partnership with the Colorado Division of Wildlife and the U.S. Department of
Interior fund a large portion of CSCP. To date, GOCO has provided $10,825,000.00
in Legacy program funding to CSCP (Great Outdoors Colorado, 2005).
Alternative Dispute Resolution (Negotiation)
Each landowner participant in CSCP negotiates a conservation easement and a
management agreement with the Colorado Division of Wildlife. These agreements
62


designate the habitat placed under easement for specific species as well as what
actions the landowner will take, or not take, to enhance species recovery and survival.
This section reviews the Alternative Dispute Resolution (ADR) literature, with an
emphasis on negotiation, in order to understand the psychological, contextual and
cultural elements that surround and influence the negotiation process.
There are several alternatives to litigation in dispute resolution, the most
common being mediation, facilitation, arbitration, med-arb (mediation-arbitration)
and negotiation. Among these alternatives, negotiation is the most fundamental in
that it is used in everyday life by most people and when used in formal settings it is
usually the quickest and most inexpensive form of dispute resolution. In its simplest
form, negotiation is not only used to resolve disputes, but to have a discussion
between two or more parties in order to try to reach an acceptable agreement over an
issue in which all have an interest. It is a back-and-forth communication designed to
reach an agreement when different parties have some interests that are shared and
some that are opposed (Fisher, Ury and Patton, 1991).
Although rigorous theorizing about negotiation is still in its infancy, the last
twenty years have witnessed a proliferation of research on negotiation. Scholars have
recently sought to advance the understanding of basic psychological processes in
negotiation such as motivation, emotion and cognition; complex social processes
including power, communication and influence and effects of negotiation context
63


such as teams, third parties and technology. Much of this recent research questions
long-held theoretical assumptions in the fields of conflict management and dispute
resolution (Gelfand & Brett, 2004). For example, the assumption that negative
emotions such as paranoia and anger (Barry, Fulmer & Van Kleef, 2004; Kramer,
2004) and negative events such as impasses (De Dreu, 2004), are. in fact,
counterproductive. Other studies question an exclusive focus on conscious
processing of information in negotiations while neglecting unconscious processing
(Thompson, Neale & Sinaceur, 2004; Weber & Messick, 2004), while still others
have questioned the criteria used to evaluate negotiated agreement outcomes,
showing how they need to be broadened in order to reflect the everyday realities of
disputing (Shapiro & Kulik, 2004; Conlon & Myer, 2004; Tyler & Blader, 2004).
Gelfand and Brett (2004) point out that scholars have also presented a more
dynamic view of the negotiation field by shifting the research focus from cold,
hardwired biases to hot situated cognitions and contagious emotions (Thompson et
al., 2004; Barry et ah, 2004); shifting from a focus on either individual differences or
contextual factors to the complex interaction of these forces over time (De Dreu,
2004; Weingart & Olekans, 2004, Weber & Messick, 2004); shifting from focusing
on self-interest to simultaneously considering how multiple motives (including
impression management and justice, epistemic and social motives) drive negotiator
behavior; and from a focus on the fixed nature of communication media to a more
64


fluid approach in which the derived properties of such media can be manipulated
(McGinn & Croson, 2004). Barry et al. (2004) have also begun to question the field's
methodological diversity and complain that simulated, laboratory-based research
creates artificial conclusions dissimilar to those found in real negotiations.
Culture, simply defined as having a shared way of life as well as shared
perceptions of that life, has a profound effect on negotiation interactions since it is the
frame that shapes how people perceive and interact with their environment and other
people and what meanings and values they assign to their acts and interactions
(Goodpaster, 1997). In short, culture constructs reality; different cultures construct
reality differently; communication across cultures pits different constructions of
reality against each other (Cohen, 1996, p. 122). When parties share a culture,
although they may still have disputes, they approach the world with the same, general
interpretive frame and share a set of general behavioral approaches and background
assumptions. Although cultural research on alternative dispute resolution has to this
point been dedicated exclusively to nationality and ethnicity, implications are evident
for examining negotiations between rural and urban parties, agricultural and
environmental parties and multi-party negotiations made up of several different
culturally induced values.
By taking a cultural perspective on negotiation, negotiation scholars have
recently expanded the range of phenomena that are studied in negotiation research
65


and thereby have broadened the theories, constructs and research questions
characteristic of negotiation research (Gelfand & Brett, 2004, p. 416). They have
also demonstrated that such research provides new explanations for old findings,
thereby extending the understanding of negotiation contexts. Cross-cultural research
is playing a critical role in revealing limiting assumptions and identifying boundary
conditions for negotiation research and theory as well as providing practical insights
for negotiators by exposing conditions under which culture becomes a bridge or a
barrier to successful resolution of conflict (Gelfand & Brett, 2004).
According to Fisher, Ury and Patton (1991), there are three forms of
negotiation: hard, soft and principled. Hard negotiation (bargaining) is adversarial
and operates under the proposition that negotiating opponents are enemies with the
end result requiring a winner and a loser. Soft bargaining seeks to preserve the
relationship above all else and often results in one party's conceding more than
necessary. Soft negotiation seldom results in a wise agreement. A wise agreement is
defined as one that meets the legitimate interests of each side to the extent possible,
resolves conflicting interests fairly, is durable and takes community interests into
account (Fisher. Ury & Patton, 1991, p.4).
The authors propose a third alternative, which they call "principled
negotiation." This approach calls for negotiators to use five fundamental principles to
negotiate effectively with each other instead of against each other. These principles
66


are: 1) separate the people from the problem, 2) negotiate about interests, not
positions (see also Jandt, 1985), 3) invent options for mutual gain, 4) insist on
objective decision criteria, and 5) know your BATNA (best alternative to a negotiated
agreement). A good agreement then, is one that is wise, efficient and improves, or at
least does not damage, the parties' relationship.
Critics of principled negotiation argue that it can only work in situations in
which win-win outcomes are possible. In unavoidable win-lose conflicts, they argue
that the techniques of distributive bargaining are superior. In distributive bargaining,
the assumption is that there is only a limited amount of "stuff" to go around and that
the more that one side gets, the less the other side will be able to have. This is
inherently a competitive situation and calls for competitive negotiating tactics
(Conflict Resolution Consortium, 2005).
Peter Stark (1994) puts forth five possible negotiation outcomes. The first is
lose-lose in which neither party achieve their needs or wants and both parties are
reluctant to negotiate with the same counterpart again. The second and third possible
negotiation outcomes are win-lose and lose-win; the difference, of course, is what
side of the fence an individual is on. Obviously, the party on the losing side walks
away without its needs or wants being fulfilled and more importantly, is unlikely to
negotiate with the winner again damaging, if not totally destroying, the relationship.
Fourth, and most desirable, is a win-win outcome in which both parties needs and
67


wants have been fulfilled. Both parties leave the negotiations feeling fulfilled, willing
to negotiate with each other in the future and a preserved relationship. Finally, a no-
outcome scenario is likely to occur w'hen neither party wins or loses, such as when
negotiations are suspended before any agreement has been reached.
Stark (1994) recommends four strategies for creating a win-win outcome.
First, parties should work to narrow negotiation to one issue. Second, they should
realize that counterparts do not have the same needs. Third, counterparts should not
assume to know each other's needs. Fourth, have total belief in number two. In other
words, negotiators should never lose sight of the fact that their counterpart looks at
the hoped for outcome differently than they do, so they should maintain a cooperative
attitude and strive to allow each party to obtain something of greater value in return
for something on which they place a lower value.
Considering that the literature places negotiation within the context of
cultural and value-based reality, this section has led to a proposition of how rural
cultural and social values might influence landowner negotiation with CDOW, land
trust facilitators and land trusts. It could also illuminate the reasoning behind the
personnel and strategies CDOW uses in CSCP implementation. CDOW Area
Wildlife Conservation Biologists charged with street-level implementation of
CSCP are not only biologists, but most times live in the same rural communities of
68


the participating landowners and are therefore not only acquaintances of their clients,
but steeped in farm and ranch culture and operations.
Implementation
Determining success elements of the CSCP implementation process is the
main purpose of this dissertation. Therefore, in order to make that determination, an
overview of the substantial implementation literature is necessary to focus and bound
the study by selectively analyzing the multitude of definitions and theoretical
constructs for implementation.
This section begins with a review of literature emanating from a
comprehensive research regime by Tim Clark and his associates between 1994 and
2002. Clark's research recognizes endangered species recovery as a human endeavor
and attempts to integrate biological research done in the field of endangered species
with the policy sciences. The research focuses on the characteristics of partnerships
engaged in species management and recovery, as well as several of the stages in the
policy process, including the stage most important to this study, implementation.
Next, the review moves to the broader field of policy implementation in general, and
provides an overview of the literature involving the history of policy implementation
studies, its complexities, the difficulties in measuring implementation success,
69


theories and the plethora of working definitions from which to choose as most
appropriate to this study. Lastly, the literature concerning implementation incentives
and the role of federalism in ESA program implementation is reviewed since each is a
large part of CSCP implementation.
The Policy Sciences in Endangered Species Management and Recovery
Tim W. Clark (2002) is apparently the only scholar who clearly explicates the
need for applying the policy sciences to endangered species management and
recovery. His overriding goal is to improve understanding of the policy processes for
natural resource students and management practitioners through the application of the
policy sciences and interdisciplinary problem solving. Simultaneously, he cautions
against using only the biological sciences to solve natural resource management
problems (Green, 2002). Relying heavily on the work of Harold Lasswell (1960,
1971; Lasswell & McDougal 1992), Clark describes the policy sciences framework in
terms of variables grouped into three dimensions: social process, decision process and
process orientation; while considering the standpoint of the policy analyst, multiple
methods used in policy decisions and the moral goal guiding problem solving
decisions.
Clarks work revolves around two core questions: How are we going to use
natural resources? And who gets to decide" (2002, p. 7)? His answers are framed in
the best tradition of discursive democracy. To the first question, he responds that it
70


is inconceivable that human rights will be attainable by all without simultaneously
managing natural resources sustainably (p. 91), yet the current myth dominant in
Western cultures contains many non-sustaining ideas, among them the idea of us
against the environment ... (p. 165). He continues: We must manage natural
resources in ways that serve the public good, that is, that promote dignity and well-
being for all people (p. 172). In answer to the second question, Clark lays out a
consistent theme of democratic inclusiveness with a goal of determining the common
interest through the natural resource policy process (Green, 2002).
It was generally accepted by several scholars, even before Clarks work in
2002, that social factors, such as communication, cooperation, organization,
leadership and many others, play a crucial role in the failure or success of endangered
species conservation work (Clark & Cragun 1994, Clark et al. 2000: Reading and
Miller 2000). But through an exhaustive set of articles in the journal Endangered
Species Update, Clark and his associates (2002 a-c; 1996) narrowed the approach of
applying the policy sciences to natural resource management into endangered-
species-specific conservation. This work stands alone in its attempt to link the policy
sciences in general, and implementation studies specifically, to endangered species
recovery programs. The articles carefully construct a cogent argument that, since the
passage of the ESA in 1973,
...endangered species programs have faced serious challenges
that have often impeded the ability of the people involved to
succeed ... and suffer from a disconnect and imbalance in
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knowledge and skills concerning natural science research
(on the one hand) and social, organizational, and values-related
concerns (on the other). These include a preponderance of
programs strong in natural sciences research and methods, but
weak in the social science knowledge and individual skills
necessary to effectively participate in and influence the
management process (i.e. the series of decisions and actions
that occur within a program from its inception through its design,
implementation, evaluation and, if called for, termination).
While the level of knowledge about the management process
has increased markedly in the past decade, the level of skill
necessary for managing and operating within it has lagged
far behind the ecological scientific abilities of endangered
species program participants. This leads directly to many
complex and sometimes glaring problems in recovery efforts
(Clark, Reading & Wallace, 2002b, p. 70).
Partnerships in Species Management
Significant to this dissertations focus on the partnership inherent in the
implementation of CSCP and its qualitative, case study method is the recognition that
endangered species recovery is a human endeavor, usually requiring the successful
cooperation of partnerships whose members have varying interests in addition to
species recovery" (Clark & Brunner, 1996, p. 4). Increasing numbers and types of
partnerships exist, focusing on different species in different locations facing different
biological challenges with different people involved. Some partnerships work better
than others for species recovery (e.g. Jentoft & McCay 1995; Hutcheson et al. 1995;
Roy & Fischer 1995; Beatley 1994; Clark & Cragun 1994; National Fish and Wildlife
Foundation 1993).
72


The trend in endangered species recovery program partnerships is toward
more, larger and more diverse partnerships involving a wide array of stakeholders.
Ideally, the central goal of any partnership is the recovery of one or several
endangered species while understanding that accomplishing that goal is likely beyond
the reach of the resources of any single individual, agency or organization. This
encourages the natural pooling of interested stakeholders and their accompanying
resources (Clark & Brunner, 1996). In practice however, species recovery can be
supplanted by other priorities such as financial gain or the opportunity to conduct
scientific research among partnership members. Dubbed goal substitution by
Clark and Brunner (1996), these divergent priorities make the partnerships more
prone to failure and the species more prone to extinction. Style and approach can
further jeopardize a partnerships success.
Clark and Brunner (1996) illustrate the importance of partnership decision
processes in two endangered species recovery program case studies and show the
necessity for those organizations to perform certain functions well in order to
succeed, whatever the common interest may be. They make the case that through the
use of Lasswells (1971) seven decision functions, an improved understanding of the
decision process and how to evaluate and improve its critical functions can maximize
the possibilities for successful species recovery while minimizing the vulnerabilities.
This knowledge is necessary for learning how to recognize and avert problems and
73


how to build and maintain rational, participatory and equitable decision making
processes to achieve species recovery (Clark & Brunner, 1996).
By knowing how the decision process works or does not work, partners in
endangered species recovery programs can maintain good practices or correct a
poorly functioning process while providing a means for reconciling, or at least
managing, policy conflicts through the politics of stakeholders pursuing divergent
policies most reflective of their respective interests. However, in order to secure a
common interest species restoration policy differences must be reconciled. In the
decision process, a working specification of the common interest takes the form of
rules, both substantive and procedural (e.g., what is to be achieved and how?). These
rules are necessary to coordinate procedures and actions of a partnership's members.
Finally, participants must be open to learning, and the process must be
comprehensive, manageable and grounded in real world contexts (Clark & Brunner,
1996) particularly when implementing species recovery programs (such as CSCP).
Endangered Species-Specific Implementation
Endangered species recovery programs face many challenges; chief among
them is the implementation challenge (Clark & Harvey, 2002a, p. 147).
Implementation concerning endangered species is a multifaceted task that is
complicated, dynamic and complex. It requires skilled leadership and the capacity to
74


learn and change course as feedback suggests. Too often, people assume that
endangered species recovery is a purely biological problem and thus overlook the
many extra-biological dimensions. As a result, recovery programs may not pay
attention to critical policy and organizational variables that ultimately determine
whether the program succeeds or fails (Clark & Harvey, 2002a).
Using examples discovered from examination of the oft-cited black-footed
ferret recovery program in Meeteetse, Wyoming, during the 1980s that confirmed
recovery efforts (over 15 years) and generalizing them to other recovery programs,
Clark and Harvey (2002a, pp. 147-148) emphasize the complexity of the
implementation process as well as identify and describe four aspects of recovery
programs that directly complicate implementation challenges. These aspects include,
first, the complexity of cooperation among multiple participants involved, in which
distinct, different perspectives come to bear on the problem at hand and several
different criteria are used to measure implementation success. Second is goal
displacement, characterized by a replacement of the species conservation task with
bureaucratic imperatives such as control and power grabs. Third is inappropriate
organizational structures that poorly interrelate the work to be done with the workers
and the affected species and environment. And fourth is intelligence failures and
delays, wherein key information is not gathered, used, or is underappreciated.
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These examples are held up as persistent features of the problems arising in
endangered species recovery programs. Clark and Harvey (2002a) conjecture that
they must be scrutinized and given meaning through a policy and organizational
framework in order to be managed effectively. In order for stakeholders in recovery
programs to deal with these implementation problems and improve future
performance, the authors suggest the adoption of a systems perspective in which a
broad, integrative understanding of the interactive weh" of biological, organizational
and policy components involved is accomplished. The ideas formed from this
systems perspective, the authors claim, can go a long way in anticipating and
avoiding the common pitfalls experienced in previous recovery program
implementation, especially in the areas of policy process, organizational structure and
individual behavior (in addition to a constant striving for improvement in technical,
biological work).
In brief, Clark and Harvey's suggestions for improvement in the policy
process include the decision seminar (Brewer, 1975; Lasswell, 1960), a technique
designed to allow a group of specialists and decision makers to integrate their
knowledge to solve complex problems which is offered as a useful model for
recovery program implementation. Another technique is decision analysis
(Maguire et al., 1988, 1987) in which managers, through probabilistic models,
integrate ecological theory, objective data, subjective judgments and financial
76


concerns in making decisions under conditions of uncertainty. A third way of guiding
recovery group implementation actions would be adaptive management (Brewer,
1988; Hollings, 1978), where decision making is treated explicitly as a process of
making mistakes and correcting errors.
Clark and Harvey (2002a) contend that organizations play a major role in
determining the behavior of member individuals and major actors in policy
implementation. Organizational improvements would involve usage of task forces
and project teams operating under adaptive management guidelines. A recovery team
should be quick and able to adapt to changing information, be supportive of
individual members while avoiding groupthink and operate under a fourteen step
procedure divided into the following four stages: problem identification, development
of alternative strategies, development of an action plan, and implementation and
evaluation of the action plan (p. 151).
Finally, the authors conclude that individual performance is important in
recovery programs, that performance can be improved and that individuals are
molded and constrained by established policy prescriptions and conventional
experience. Most decision makers will not appreciate these approaches by individual
professionals (e.g. Clark 1986; Hormocker 1982; Craighead 1979). Simply providing
more reliable statistics or new arguments to decision makers will not reverse their
basic beliefs. Real solutions depend on the openness of decision makers and their
77


understanding of the premises they use in accepting or rejecting intelligence.
Individuals should continue trying to improve their programs, but they should do so
with an understanding of the potential political consequences of their efforts.
This section has revealed the sheer complexity of endangered species and
ecosystem conservation and tells us there is no single, straightforward, technocratic
recipe for success. The essential challenge in species and ecosystem conservation, as
in most complex situations, has always been addressing unbounded problems
successfully when analytical resources are bounded (Ascher, 1986). Real
improvements will come about by refining the conceptual tools that enhance
understanding of complex conservation problems and by developing practical tools
that allow the problem to be dealt with realistically. Improvements in ecosystem and
species conservation programs and their implementation will not come quickly, even
with increasing numbers of conceptual and practical tools. As Etheredge (1985)
maintains, there are many barriers to learning and improvement, but with so much at
stake in every recovery program, they must be recognized and overcome. As stated
in Chapters 1 and 4, this thesis aims to help refine the conceptual tools as well as
develop practical tools to deal with the challenge of CSCP implementation
specifically, and other endangered species programs generally.
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History of Implementation Research
After acknowledging the explosive growth in implementation studies
throughout the 1980s and 1990s, deLeon and deLeon (2002) point out that although a
vast literature exists in the fields of policy initiation and analysis, focus on policy
implementation as a field of scholarly inquiry and practical recognition has come
and gone like an elusive spirit ( p.l). Implementation scholars writing in the 1980s
and 1990s recognized that the field of implementation struggled for and made small
theoretical insights (Hargrove, 1990; Goggin, 1986) but admitted that the field had
not yet achieved conceptual clarity (Ingram, 1990). More than twenty years later,
scholars understand as much as ever that implementation is still a treacherous and
complex subject and anything resembling a consensual theory of implementation has
yet to emerge (deLeon & deLeon, 2002, p. 20).
The complex and slippery nature of studying implementation is perhaps best
expressed in Pressman and Wildavskvs (1979) metaphor applied to the
implementation stage of policy programs: Our normal expectation should be that
new programs will fail to get off the ground and that, at best, they will take
considerable time to get started (p.76 ). Notwithstanding recent illustrations of
numerous workaday world successes (deLeon & deLeon, 2002; O'Toole, 2000),
many policy analysts may still believe The cards in this world are stacked against
things happening, as so much effort is required to make them move...the remarkable
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thing is that new programs work at all (Pressman & Wildavsky, 1979, p. 46). Such
is the nature of policy implementation in general and ESA policy implementation in
particular.
A number of implementation scholars discuss the history of implementation
research in the context of first, second, and third generations (deLeon & deLeon,
2002; OToole, 2000; Lester & Goggin, 1998; Matland, 1995). First-generation
research usually consisted of case studies that focused on the tremendous amount of
problems that lie between policy formulation and implementation. The seminal works
of this generation of research came from Pressman and Wildavsky (1973, 1979,
1984), Eugene Bardach (1977) and Martha Derthick (1972).
Besides discovering the importance of learning, external monitoring and
bargaining among intergovernmental actors as these pertained to their respective,
isolated case studies, first-generation implementation researchers demonstrated the
complexity of the field but failed to establish any parsimonious framework to guide
implementation research. Little if any progress was made toward a generic
implementation theory.
Second-generation implementation research, occurring throughout most of
the 1980s, was marked by the conflict between top-downers and bottom-uppers.
Top-downers were led by scholars such as Mazmanian and Sabatier (1989 & 1983),
Nakamura and Smallwood (1980) and Paul Berman (1980) who used non-
parsimonious frameworks that viewed policy designers as the central actors and
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concentrated their attention on factors that can be manipulated at the central level
(Matland, 1995). Second-generation bottom-uppers such as Lipsky (1980 & 1971),
Hjern, (1982) and Hjem & Hull (1983) held that street-level bureaucrats (Lipsky,
1980 & 1971) were the key to successful implementation and that implementation
occurred only when actors who were primarily affected were actively involved in the
planning and execution of specific policy programs.
Lipsky, a pioneer in street-level bureaucracy research, argues that frontline
workers have a good deal of discretionary power, which ultimately enables them to
affect policy implementation at the street-level of bureaucracy. He explains:
Street-level bureaucrats make policy in two related respects.
They exercise wide discretion in decisions about citizens
with whom they interact. Then, when taken in concert, their
individual actions add up to agency behavior (1980, p. 13).
Implementation then, must maintain a balance between policy mandates and
implementer discretion. Maynard-Moody and Musheno (2000, p. 334) concur that
street-level discretion is inevitable and further state that "every aspect of street-level
work is defined by rules and procedures ... yet rules and procedures provide only
weak constraints on the loose parameters around street-level judgments. Street-level
work is, ironically, rule saturated, not rule bound. More recently, Maynard-Moody
and Musheno (2003) have pointed out that
.. .street-level workers must decide which rules or procedures
to apply. The proliferation of rules (often contradictory)
requires matching the case to the rule or procedure, and
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this process requires discretion. Thus, like putty, discretion
can be squeezed by oversight and rules but never eliminated;
it will shift and reemerge in some other form in some other
place. This is a fact of life in the modem state (p. 10).
Riccucci (2005, p. 90), has interpreted this to mean discretion at the street-level is
one of the primary reasons why the formulated policy is not implemented or delivered
as was expected by politicians and higher-level administrators.
Several other scholars have studied the significance of street-level discretion
in determining policy (Keiser 1999; Keiser and Soss 1998; Kelly, 1994; Weissert
1994). Kelly (1994), focuses exclusively on the context of frameworks that street-
level bureaucrats use to view the world and thus carry out their tasks. As one
example, in studying California teachers and local workers in a state employment
development agency, Kelly found that street-level bureaucrats' judgments about
justice are highly significant to how they might implement public policy and
concludes, street-level workers "orchestrate outcomes that are compatible with their
visions of justice" (p. 119). Perhaps Elmore best summed up the bottom-up
perspective as early as 1982: Unless the initiators of a policy can galvanize the
energy, attention, and skills of those affected by it, thereby bringing these resources
into a loosely structured bargaining arena, the effects of a policy are unlikely to be
anything but weak or diffuse (Elmore, 1982, p. 611). These are very significant
observations in CSCP implementation.
82