UCD School of LawEnvironmental Law Society

Vol. 9 No. 2June 1985

The "Hammer" Clause:Reclamation Reform Act of 1982by Ray Huffaiker

The Reclamation Reform Act of 1982(RRA) removed, rebuilt, and replacedone of the cornerstones of the Reclama-tion Act of 1902 (RA), the acreagelimitation on federal water subsidies.Reclamation Reform Act, 43 U.S.C. §390aa, etseq. (1982). This reconstructionof the old act, shaking the foundations of80 years of reclamation law, was moti-vated by (1) the intense public contro-versy over the discrepancy between theoriginal broad social and economic goalsof the RA and the actual implementationof the RA by the Bureau of Reclamation,and (2) the poor financial condition ofsome projects-in particular the CentralValley Project (CVP) in California, thelargest of the Bureau's projects.

The implementation of the RRA hasbeen encumbered by long term waterdelivery contracts made before enact-ment. The majority of significant existingfederal water contracts will not expireuntil after the year 2000. Wary of breakingthese existing contracts outright, Con-gress has inserted the RRA's contro-versial "hammer" clause (43 U.S.C. §390cc(b)). S. Rep. No. 97-568, 97 Cong.2d Sess. (Sept. 22, 1982). The purpose ofthe clause is to induce water districts withexisting water contracts to amend theircontracts to come underthe restructuredlaw of the RRA. On one hand irrigators inamending districts become eligible toreceive subsidized water for up to 960acres of owned or leased land, but mustpay the "full-cost" for water (includingthe interest on the capital component) forlands in excess of 960 acres. On the otherhand, districts not amending before mid-

1987 will only receive water under arestrictive version of the RA. Irrigators inthese non-amending districts will receivesubsidized water for up to 160 acres ofowned or leased land. But they will berequired to sell off land in excess of 160acres and pay "full-cost" for water to anyadditional land that is leased to them.

Critics contend thatthis newly mandatedrestriction "hammers" districts into amend-ing their water contracts before thecontracts would otherwise expire.

In many reclamation areas thefull-costfor water is probably considerably higherthan the subsidized cost or rate. Thusfarmers throughout the west, but mainly

in California, will have to paysubstantiallyhigher prices under the new law toirrigate their current holdings than theyotherwise would under their existingcontracts. This rise in production costsmay force them to restructure their ownoperations. Accordingly, farmers whofind it more profitable to remain undertheir existing contracts can be expectedto push for repeal of the hammer clause.

Both the judicial and legislative ave-nues for repeal are founded on constitu-tional and policy arguments. Because ofthe lengthy complexity of these argu-ments, however, this article will notattempt to develop them. Rather it will try(1) to predict which landowners andtenants can be expected to fight forrepeal and (2) to suggest the ways thatamending contract holders may be ableto use the Bureau's regulations to miti-gate the impact of the restrictive leasingprovisions of the RRA.

Who Will Work For Repealof the Hammer Clause

Some landowners and tenants mayelect to amend their contracts to comeunder the RRA; others may choose toremain under the RA and fight for repealof the hammer clause. Their choice willdepend upon which law they anticipatewill benefit them most. Anticipated bene-fits will depend largely on the followingfactors:

1) The effect of the RRA on economicrents expected by landowners andtenants. Irrigators do not capture the

difference between the project water costto the government and the subsidizedcost they pay (subsidy), but rather theycapture the difference between what thefederal water is worth to them in produc-tion and what they pay to use it (econo-mic rents). The distribution of economicrents among tenants and landownersdepends upon the performance of farm-land lease markets in transferring projectbenefits from tenants to the landowners.Determining the performance of regionalfarmland lease markets is an empiricaltask. A 1983 cooperative Bureau ofReclamation - UC Davis study of theImperial Valley-a reclamation area withunderpriced water, extensive leasing,and a wide distribution of tenants-

demonstrated that this area had leasemarkets capable of transferring the bulkof projects benefits to landowners.Gardner and Huffaker, The Distributionof EconomicRents When Irrigated Farm-land Is Leased: The Case of the ImperialValley, California, Bureau of ReclamationTechnical Rep. (Nov. 1983). The ImperialValley, however, has been exempt fromacreage limitations for all but a very brief,recent period. Thus, the leasing agree-ments studied may not be fully repre-sentative of those in other reclamationareas fully subject to such limitations. Forexample, unlike operators subject toacreage limitations, Imperial Valley Oper-ators have few incentives to engage in"sweetheart" arrangements. Under thesearrangements, owner-operators complywith the RA by selling off land in excessof 160 acres, but only on the conditionthat the buyer lease-back the land onfavorable terms.

Despite the exclusion of acreage limita-tions on ownership and leasing, theImperial Valley study is noteworthy be-cause it offers evidence that a farmlandleasing market can be competitive in areclamation area characterized by largetenants. The study shows that projectbenefits were not disproportionately cap-tured by the larger tenants in the area.

The finding that landowners may cap-

ture the bulk of the economic rents inleasing implies that lease prices paid tolandowners may decrease almost pro-portionately with the reduction in eco-nomic rents caused by an increase inwater prices to full-cost.

2) The size of landowners and tenantsin the relevant geographic lease market.Bureau regulations now ensure thatlandowners and tenants will not misuselease agreements to escape full-costpricing. 46 Fed. Reg. 54,773, § 426.7(1984). For instance, if a landowner rentsout his land in excess of 960 acres to atenant operating on less than 960 acres,the tenant will still pay the full-cost forwater to the leased land. Also, withoutpaying the full-cost for water, a tenant

operating on more than 960 acres cannotirrigate land leased from a landownerwith less than 960 acres.

3) The farm size of an individualrelative to the acreage limitations of eachlaw. Consider first the landowners whoreceive subsidized federal water but arenot farm operators. Suppose they findthemselves in lease markets charac-terized by tenants who do not exceed the960 acre limitation of the RRA (no factor#2 problems). Suppose further these land-owners have more than 960 acres thatthey lease. Under the RA they have todispose of acreage exceeding 160 acres.Under the RRA they may own and leaseout a total of 960 acres. Thus theselandowners may prefer the RRA sincethey can lease out more land than underthe RA.

Consider next landowners who havealready complied with the 160 acreagelimitation of the RA. Where reclamationlaw applies in the western United States,this situation is probably the most com-mon. Under the new law these land-owners can buy land within the districtand offer leases that reflect their eligi-bility to receive subsidized water up tothe 960 acre limit. Because this leasedland will receive subsidized water, it canbe leased for a higher price than otherland receiving only full-cost water. But it

is only more valuable to small land-owners (with holdings under 960 acres),who accordingly will be willing to pay ahigher price for it than large landowners(with holdings over 960 acres). Thus, inboth land sales and leasing markets,small landowners may find their competi-tive position enhanced in comparison tolarge landowners. They may thereforesupport the hammer clause to try tocompel their larger competitors to amendtheir contracts.

Suppose now that the above land-owners are located in areas character-ized by large tenants who exceed the 960acre operating limitation. Economic rentsand lease prices may be higher under theterms of existing contracts than they willbe if full cost prices must be paid forwater delivered to land leased to opera-tors in excess of 960 acres as requiredunder the RRA (factors #1 and 2).Landowners amid large tenants may thusprefer nonamended contracts, opting topush forthe repeal of the hammer clause,which forces amendment.

Consider, finally, tenant preferencesfor reclamation law. Because of theirexpectation of subsidized irrigation costsunderthe RRA, tenants operating on lessthan 960 acres should generally be ableto offer higher bids for lease agreementsthan tenants operating on more than 960acres, except where economies of scalesufficiently favor the large operations.Thus, small tenants may find their com-petitive position enhanced under the newlaw in comparison to large tenants.These small tenants may therefore sup-port the hammer clause to force theamendment of their larger competitors'contracts.

Tenants with less than 960 acres butwho lease from large landowners mustpay the full-cost of water. These tenantsare likely to join their larger competitorsin preferring the old law-especially if thehammer clause is repealed.

It should be noted that most tenantsare also landowners who farm on what-ever owned acreage is allowed under therelevant reclamation law. As owner-oper-ators, they may profit from the expansionof owned acreage to receive subsidizedwater under the RRA, especially if theircontracts are about to expire. For them,

the gain in wealth due to the expandedacreage provisions of the RRA may begreater than the loss in wealth due to theincreased water rates under the hammerclause.

Mitigating the Impact ofAmending Contracts

If attempts to repeal the hammerclause fail, irrigators of all sizes may haveseveral means under the Bureau's newregulations to mitigate the impact ofamending their contacts pursuant to therestrictive leasing provisions of the RRA.

The irrigators can enter into § 426.7(2)management or consulting agreementsin lieu of conventional leases. 46 Fed.Reg. 54,773, § 426.7(2) (1984). These arelease agreements "in which the manageror consultant performs a service for thelandowner for a fee but assumes no riskin the operation of the land ..." Id. Smalllandowners surrounded by large tenants,for example, may benefit more frommanagement agreements than from con-ventional leases. The managed land isnot counted against the manager's ownentitlement and is thus eligible for sub-sidized water. Small landowners benefitfrom the increased rents resulting fromlower water costs. However, these land-owners face a greater production riskthan under conventional leases: theymust both pay managers a cash rate andsoak up losses in bad years. Theirwillingness to do so depends on thedifference between full-cost and sub-sidized water rates, and how the differ-ence translates into increased rents.

Trusts are another vehicle to mitigatethe restrictive leasing provisions of theRRA. The trust provides a worthwhileadvantage because it is exempted fromthe full-cost pricing and ownership limita-tions of the RRA (42 U.S.C. § 390nn):

The ownership and full cost pricinglimitations of this title and theownership limitations provided inany other provision of Federalreclamation law shall not apply tolands in a district which are held byan individual or corporate trusteein a fiduciary capacity for a bene-ficiary or beneficiaries whose in-terests in the lands served do notexceed the ownership and pricinglimitation imposed by Federalreclamation law, including this title.

The use of trusts to avoid the restrictive

provisions of the RRA has been antici-pated. A respondent at the public hear-ings of the Bureau of Reclamation in theformulation of their regulations "sug-gest[ed] that the rules should not allowtrusts to become the means by which theRRA can be circumvented." 43 C.F.R. §426.6(b)(4). However, the Bureau hasjustified the rule by answering that it is arestatement of the conditions set forth inthe RRA concerning trusts.

A farm operator may receive additionalbenefits by adjusting his current opera-tion to a structure required by a trust.This will depend on whether the benefitsof the framework of a trust are moreadvantageous than the benefits derivedfrom the current farm size with itsattendant tax and liability framework.Consider, for example, a sole proprietorof federal irrigated farm land which issignificantly larger than the 960 acrelimitation of the RRA. By placing hisexcess land in trust, the farmer does nothave to put it under a recordable contract.Each remaining family member can be-come the beneficiary to 960 acres ofexcess land unless he or she has otherinterests in federally irrigated land.

The farmer-settlor can continue tocontrol the operation of the former

excess land (and collect a salary) by a"declaration of trust," in which he de-clares himself trustee. A declaration oftrust will generally be recognized if thesettlor sufficiently manifests a desire tocreate a trust. This desire can generallybe shown through (1) notice to a thirdperson of the existence of the trust and(2) separate bookkeeping of each bene-ficiary's interest. Alternatively, an inde-pendent trustee can hire the farmer-settlor to operate the trust farmland as amanager-consultant.

Advantages of placing excess land in atrust, however, must be weighed againstthe disadvantages. The land can be lost ifsold by beneficiaries or reached by theircreditors. The land held in trust may besold pursuant to a recordable contract,but in this casethe farmerwill receive thenon-project value of the land. The dangerof this loss may be mitigated if the farmersets up some type of "constrained" trustsuch as a revocable trust (settlor retainspower to revoke the trust), a spendthrifttrust (beneficiaries cannot sell the trustres, and creditors cannot reach it forsatisfaction of claims against benefici-aries), or a discretionary trust (trusteehas discretion to withold income so thatbeneficiaries do not have a right thecreditors can reach).

Consider now the general farm part-nership. Partnerships are limited to 960acres of subsidized irrigation. Convertingthe partnership to a trust allows eachpartner-turned-beneficiary to hold abeneficial interest in 960 acres of sub-sidized, irrigable land. In addition, thetrust provides liability advantages notattainable with a partnership. Under thelaw of general partnerships, each partneris subject to unlimited liability on all debtsand liabilities of the partnership. Thecreditor of the beneficiary, on the otherhand, can generally reach only the bene-ficiary's equitable interest in a trust.

If the trust seems an attractive alterna-tive for the farm partnership, then it isdoubly so for the corporate farm. Underthe RRA, farm corporations with over 25shareholders are limited to owning 640acres, only 320 of which may be irrigatedwith subsidized water. Instead of puttingexcess land under a recordable contractand paying the full-cost for half of itsowned land and all of its leased land, thecorporation may be able to convert itsholdings into a trust. The new trust wouldbe capable of irrigating a tremendousnumber of acres of land at the subsidizedrate since the RRA puts no limit on theaggregate size of the trust.

Farm corporations with over 25 share-holders also have the option of reducingthe number of their shareholders to 25 orless. This reduction qualifies them toreceive subsidized water for 960 acresinstead of only 320, yet they retain theircorporate tax and liability advantages.

Only smallwho are notfull-cost probenefit fromhammerclauscompel their lacontracts andever, even sm

Conclusion may be gravely hurt by the hammer by Bureau regulations and (2) restructur-clause if their regional lease market is ing their business organizations to profit

tenants and landowners characterized by either large landowners from more favorable treatment of otherlikely to be affect by the or tenants. types of businesses recognized in thevisions of the RRA can Notwithstanding RRA, the impact of regulations.the implementation of the the hammer clause may be mitigated.;esince its enforcementwill Irrigators may be able to amend their Ray Huffaker is to graduate from the UCargercompetitorstoamend contracts without coming under the Davis School of Law in 1986. He alsopay more for water. How- restrictive leasing provisions of the RRA holds a Ph.D. in Agricultural Economics

all tenants and landowners by (1) using lease substitutes condoned from UC Davis.

Bucket Brigade Blues: White Bass v. Rotenoneby Pat Mitchell

I. Introduction

In 1965 the California Department ofFish and Game (DFG) decided to enlargethe horizons of local fresh-water fisher-men by experimentally introducing whitebass into California waters. This fish, thedelight of many anglers in other regionsof the United States, quickly became thecherished prize of a few enterprisingCalifornia fishermen, the "Bucket Bri-gade." Casting ecological fate to thewind, these outdoorsmen surreptitiouslybut unwittingly expanded the DFG ex-periment by removing the white bassfrom its limited habitat in Lake Nacimientoto other more convenient waters, wherethese voracious fish have now become aserious threat to native anadromous fishin the Sacramento and San JoaquinRivers. To counter this threat, DFG isconsidering eradicating white bass bythe applicaiton of the pesticide rotenoneto the infested waters.

II. The Problem

Before introducing the white bass,DFG did express concern about thepotential threat to native fish. It feared thewhite bass would compete with anddiminish stripped bass and native salmonand steelhead trout populations in theSacramento Delta. To allay these fears,DFG limited the experimental introduc-

tion of white bass to Lake Nacimiento,where it believed these fish could becontained. As an added precaution, DFGchose Lake Nacimiento because it drainsinto the Salinas River, a watershed un-connected to the Delta. See Map #1.

MAP 1But in 1965 DFG did not anticipate the

ease with which modern fishing enthusi-asts would be able to undermine the DFGsafeguards. With the advent of live wellsin modern fishing boats, bucket brigaderscould keep their catch alive in these boatwells until they arrived home. These fishcould then be released into a nearby lake:

in a few years, bingo, exciting sportfishing without the tiresome drive half-way across the state. DFG believes it isprecisely this senario that brought thewhite bass from Lake Nacimiento to LakeKaweah, a tributary of Tulare Lake inTulare County. See Map #2.

MAP 2Under Section 6400 of the California

Fish & Game Code, it is a misdemeanorto plant live fish into state waters withoutfirst obtaining written permission fromDFG. It is also a misdemeanor to trans-plant live white bass without DFG writtenpermission. Cal. Fish & Game Code §§6400 and 6400.5 (West Supp. 1985).Thus, if DFG suspicions are correct,bucket brigaders illegally planted whitebass into Lake Kaweah. However, prose-cution will be difficult because theiridentity remains unknown.

Lake Kaweah drains into a landlockedbasin in Tulare County about 50 miles

south of Fresno. In 1982 and 1983, theSalyer-Boswell Company pumped thismarshy basin dry to farm the land. Insubsequent winters, however, heavyfloods not only refilled the basin, creatingshallow Tulare Lake, but also carried thewhite bass out of Lake Kaweah intoTulare Lake and surrounding irrigationcanals. Undeterred, Salyer-Boswell re-surned pumping water out of Tulare Lakeinto the San Joaquin River to reclaim thelake for farming. Through this conduitsilently swam the white bass.

Because of this breach in the DFGcontainment policy, fishery biologistsbelieve that the white bass can nowmigrate down the San Joaquin River intothe Sacramento Delta. Once in the Deltawhite bass will compete with and reducestriped bass populations. In addition,these fish will swim upstream from theDelta and congregate in large numbersbelow dams. See Map #3. There they will

MAP 3eat salmon and steelhead fry as the fryemerge from the spawning beds. In theworst case scenario, this white bassmigration would reduce salmon andsteelhead populations by 60%. See WhiteBass Management Program, Draft En-vironmental Impact Report, Summary,June 1984 [hereinafter cited as WhiteBass EIR]. Such reductions would resultin major economic losses to CentralValley salmon fishing, a 32 to 42 milliondollar industry. Declaration by Harold K.Chadwick, fishery biologist, ProgramMangaer, Dept. of Fish and Game BayDelta Studies Project.

'~ ~

Ill. DFG Solution

Initially, DFG applied the pesticiderotenone to kill the white bass that hadbeen pumped into the San Joquin River.DFG then began conducting hearingspursuant to the California EnvironmentalQuality Act (CEQA), Cal. Pub. Res. Code§ 21000, et seq., to find a permanentsolution to the white bass problem. As aninterim solution DFG erected twenty-twofish barriers to prevent the white bassfrom migrating towards the Delta. In themeantime, Salyer-Boswell has stoppedpumping water out of Tulare Lake be-cause federal subsidy programs now paythem not to farm the land underlying thelake.

Currently DFG is convinced the whitebass must not be permitted to spread intothe Delta. To prevent such an outcome,DFG is considering a plan to use rotenoneto kill all the white bass in Lake Kaweahand is studying similar plans to eradicateall white bass in California.

Rotenone is a low-level pesticide,deadly to fish but supposedly harmless tohumans when administered in low con-centrations. White Bass EIR, at 136. Allfish are very sensitive to low levels of

rotenone. Consequently, if DFG pro-ceeds with its plan, the rotenone will killall the fish in the target area. Id. at 136. Tomitigate this devastation DFG plans amassive restocking of Lake Kaweah inthe event it is allowed to use rotenone. Id.

*at 145.Numerous environmental groups and

government agencies support DFG useof rotenone to eradicate the white bass:the Sierra Club; the National MarinesFisheries Service; the United States Fishand Wildlife Service; the United Anglersof California; the Department of Wildlifeand Fisheries Biology, University of Cali-fornia, Davis.

IV. The Tulare County Challenge

During the CEQA process, the Agri-cultural Commissioner of Tulare Countysued DFG, seeking a writ of mandamus

to require DFG to obtain consent ofriparian property owners before applyingrotenone to waters infested with white

.oio

bass. To support his request, the Com-missioner cited California AdministrativeCode, § 6616, which states: "No personshall directly discharge a pesticide onto aproperty without the consent of theowner or operator of th6 property." DFG,however, contends that the word "per-son" cannot be construed to include thestate, because that construction woulddeprive the state of its sovereign power toeradicate pests. People v. Centr-O-Mart,34 Cal. 2d 702, 704, 214 P.2d 378 (1950)(general language in a statute cannot be

construed to impair the state's soverignpowers); See also 60 Op. Att'y Gen., 364(1977).

On October 5,1984 the Superior Courtof Tulare County issued a writ sought bythe Commissioner. However, on Novem-ber 30, 1984, the Office of the AttorneyGeneral, representing DFG, sought andobtained a writ of supersedeas to stay thelower court order pending full appeal.Both sides filed appellate briefs inFebruary of 1985, and the outcome isnow pending in the Fifth District Court ofAppeals.

V. Conclusion

Should the white bass be eradicated in

California? This fish's favorite sponsor,the bucket brigade, may have persuasivearguments on behalf of the bass, but thispolitical action committee has yet tosurface. On the other hand, organiza-tions and institutions favoring eradica-tion have put forth very cogent argu-ments. First, the white bass is a foreignspecies that should be sacrificed before itjeoparidizes native fish such as thesalmon and steelhead trout. Second,

without eradication the vitality of thevaluable salmon industry may becomeemaciated. Third, merely containing thewhite bass would be ineffective becausethe bucket brigade would continue totransplant them if the bass remained inCalifornia. Accordingly, it seems thateradication is highly desirable.

But how should DFG eradicate whitebass? There are alternative methods tothe use of rotenone such as trapping, gillnetting, and electrofishing. Yet thesemethods do not ensure total eradicationbecause the white bass is prolific. Unlessall white bass are destroyed, thesurvivorswill repopulate and nullify the effect ofthe costly alternatives. Thus, rotenoneseems to be the only effective tool.

It is hoped thatthe Court of Appeal willsympathize with the plight of the salmon,the steelhead trout, and the striped bass,all threatened by the release of the whitebass. With regard to the use of rotenone,perhaps the reasoning of the Sierra Clubwill persuade the court: "[We] cannot beenthusiastic about supporting an eradi-cation program dependent on the use ofa toxic substance. However, in thisparticular instance, the seriousness ofthe threat to the Delta fisheries posed bythe white bass compels our support [of

the DFG white bass management pro-gram]."

One lesson is clear. Plans to introduceexotic fish species into California watersshould never be carried out without firstevaluating all possible future problems-including the unexpected, likethe bucketbrigade.

Pat Mitchell is to graduate from the UCDavis School of Lawin 1986. He preparedthis article while he was an intern for theNational Resources Section of the Officeof the Attorney General of the State ofCalifornia.

"Federal Land Use Planning: Safeguardor Straightjacket?" by Naomi Rosen

On February 15 and 16 in Provo, Utah,Brigham Young University School of Lawhosted "Federal Land Use Planning:Safeguard or Straightjacket?" a confer-

ence to discuss planning for the use offederal lands. The conference attractedmany leading legal scholars on publicland law, who presented theirwide range

of views to nearly 100 participants fromacross the nation, including representa-tives from all eleven contiguous westernstates. Of particular interest was the

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overview presented by John Leshy, Pro-fessor of Law at Arizona State University.The following summarizes some of themain points in his presentation.

Planning for the public use of federalland began in 1879, when John WesleyPowell first advocated a scientificallyplanned approach to settling and de-veloping the west in his Report on theLands of the Arid Region of the UnitedStates. Gifford Pinchot articulated thenext phase in the development of federalland use planning by stressing pragmaticconcerns-science and efficiency.

The federal executive agencies tooktheir cue from both Powell and Pinchot,and planned for federal land use longbefore Congress ever agreed to suchactivity. From the beginning, the ForestService became known for its pioneeringland use planning efforts. In addition theNational Park Service and the Fish andWildlife Service also developed their ownsophisticated planning systems, eventhough they had little statutory guidance.

With the publication of the 1970 reportof the Public Land Law Review Commis-sion, Congress became enthusiasticabout planning. However, when Con-gress passed the Federal Land Policyand Management Act of 1976, it in effectmerely ratified the federal land agencies'well entrenched planning operations.Since then planning for federal landsseemingly has been elevated to the statusof motherhood. Why has it become sopopular?

First, planning has represented arational, scientific, and orderly way inwhich to manage public resources. In ourscientific and technological society,planning has "legitimize[d] and incredibi-lize[d]," lending stature to the traditionaldecisionrnaking process. Second, it hasenlarged policy-making horizons, pro-moting a "global view," and this view inturn has added vigor and breadth to theplanning process itself. Third, with plan-ning, Congress has been able to recap-ture some authority and power longsince delegated to the federal executiveagencies. Fourth, planning may havetended to democratize public land man-agement by increasing constituent in-fluence.

The factors contributing to the demo-cratization of public land managementand the increase in constituent influencehave been interesting, diverse, and com-plex. The 1970's and 80's have witnesseddecreasing national influence over fed-eral lands. The Federalism movementhas prompted a formal planning processthat has encouraged both federal andlocal agency participation. Significantly,planning itself has also provided amethod to reduce informal Congres-sional control of and pressure on execu-tive agencies: the formal written processhas replaced the informal process. More-over, because planning can help in

avoiding difficult political decisions, ithas been predictably popular with Con-gress. Difficult decisions have beenpassed along from the legislative to theadministrative arena. Thus, planning hasenlarged agency power, size, and in-fluence and has sent the federal landagencies jockeying for power amongthemselves.

The process of the last fifteen years ofincreased federal planning has led tomixed results. The most significant re-sults have been (1) the increase in stateand local government planning, (2) thediffusion of power among federal agen-cies, Congress, and local government,and (3) the partial paralysis of thedecision-making system of government.The sheer weight and volume of thisplanning activity have created both in-tense public interest and confusion. In itswake, the planning process has left manydifficult and unanswered questions:

1) Can the federal agencies plan separ-ately from each other? For example,must the Forest Service consultother agencies when it proposesgeothermal leasing on federal landadjacent to National Parks?

2) How often must plan review andrevision occur, how can plans bechallenged, and just how will they bereviewed?

3) Has the planning process paralyzedthe bureaucracy even more thanusual by creating multiple levels ofvetoes?

4) Is the entire planning process tooexpensive to justify the results? Arethere less expensive ways to ac-complish the same goals?

5) Has the process produced a useful

inventory of information about thepublic lands?

6) As a practical or legal matter, are theplanning results on public landsbinding? To what extent are the finalplans implemented? For example,the planning process did not stopformer Secretary of the InteriorJames Watt from trying to privatizefederal mineral resources. In addi-tion, Congress can simply withdrawfederal land before the planningprocess ever starts.

7) Are planning goals too vague, varied,or inconsistent to achieve?

8) Should Congress just bypass theentire planning process and use itsplenary power to do as it chooses?

9) Should the political bargaining thatunderlies the planning process beacknowledged and formally ratified?Is the next step formally negotiatedplanning?

Professor Leshy raised these ques-tions and many others at the Provoconference. In closing, he called intoquestion the viability of federal land useplanning and quoted from the Dean ofthe University of Montana School ofForestry, who had characterized theplanning process as a "stupefying mess."Leshy's remarks demonstrate that manyexperts now prescribe a health dose ofskepticism before considering the futureplanning for the use of federal lands.

Naomi Rosen is to graduate from theUC Davis School of Law in 1986. Sheholds a Masters Degree in Public Healthand is currently working as a legal internforthe Environmental Law Section of theOffice of the Attorney General in Sac-ramento.

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