Saturday, February 17, 2007

The Fine Line Between Compliance and Defiance

The Fine Line Between Compliance and Defiance
A few thoughts from Norman MacLeod

When government develops public policy to deal with natural resource issues, such as the protection of critical areas, there is a risk that human needs will not be recognized as having sufficient importance to be included as key factors when deciding the degree of regulation to be applied in protecting habitat and other values of those critical areas. When people perceive the resulting ordinance or rule as being too onerous, they may find it necessary to choose between willing compliance with the regulations or quiet defiance of them.

Today, many of our rural home and landowners find themselves standing at that fine line between compliance and defiance. They are not the first to stand there. It’s a place where change is born, and crossing that line has led to some of history’s most significant turning points. They include, but are not limited to:

· The Protestant Reformation
· The Magna Carta
· The Declaration of Independence
· The Underground Railroad
· The women’s vote
· Ghandi, whose nonviolent defiance brought down the British Empire
· Rosa Parks, whose refusal to move to the back of the bus inspired a movement
· Martin Luther King, whose articulate nonviolence led to the Civil Rights Act
· Billy Frank, whose insistence on exercising his treaty rights led to a transformation of fisheries policies and how we view treaties between the United States and the Tribes.

Each of these turning points was initiated by either an individual or by a small group of people who felt they had finally been pushed too far by massive self-serving institutions that were oppressing them and people like them. None of them gained the public support of those institutions easily, but all of them eventually did.

When we develop public policy designed to protect wildlife habitat and other critical areas of our landscapes, we are materially affecting the lives, aspirations, and opportunities of the people who live there. In many instances, those policies are set by government officials who do not live in areas where the rules and regulations will be implemented. Because their assigned goal is to protect the critical areas, wildlife habitat, and the environment in general, the people who will be most impacted are often relegated to the back of the bus.

The regulatory frameworks coming out of these public policy exercises are often touted to provide a wonderful public good. However, the costs of providing that public good is laid solidly on the shoulders of a small minority of the population, the rural home and landowners. Bearing the financial and regulatory burden of the regulation, they become rather less than happy campers.

Good public policy in regulating human activities in the rural landscape results in a shared onus between the rural landowners and their urban counterparts. The financial burden of these regulations should be shared evenly across the entire population. Unfortunately, good policy in this light is extremely rare.

Finding themselves unfairly burdened, and unable to find a way to change the situation, many people who would otherwise be fully law-abiding citizens will find it necessary to bend or ignore those rules that make it impossible to do what they feel needs to be done in order to care for their property and enjoy its use. This is where they step over the line from compliance to defiance. For most, it is not a comfortable place to be, and they don’t enjoy being there, but sometimes you have to do what you have to do.

Let’s take the example of a family who doesn’t have a lot of money, and is heating their home with wood. They don’t have enough disposable income to upgrade to a certified wood stove or furnace. A cold front comes in, a temperature inversion develops, and the Clean Air Board temporarily bans the use of uncertified wood stoves and furnaces. Faced with the option of complying with the law and seeing their kids shiver, or breaking the law and having their children be warm, what do you suppose this family will decide to do?

Let’s say that this same family comes into enough building materials and money to be able to add onto their home a few months later. A couple of weeks before they are going to begin, a pair of eagles comes along and starts building a nest within a hundred feet of the house. What do you think is going to happen? Given the fact that eagles successfully raise their young next door to the hospital in Port Townsend, where their nest occasionally gets rocked by the rotor wash from helicopters, does it make a whole lot of sense to prohibit building activity at this family’s home?

Many of today’s land use regulations appear to be based firmly on a notion that home and landowners simply cannot be trusted to provide adequate stewardship of their properties without the “assistance” of a dog’s breakfast of rules, many of which seem to be rooted in academia rather than on-the-ground reality. While this may seem a harsh assessment to those making the rules, it does reflect the perception of property owners, particularly those who live in our countrysides. For a large share of those landowners, that perception is their reality.

Home and landowners, particularly those living in our rural areas, experience of land use regulation is that there is a complex web of rules that gradually become ever more confining. Urban homeowners often come away from the permit center with the same impression. The increasing pace of new rules today comes across as what you might think of as regulatory galloping goalposts. There is never any certainty that today’s rules will be deemed adequate by “the wise” at the next review of an ordinance, and this uncertainty drives unintended consequences to the fore.

The net effect of this process can easily become apparent in the form of environmental degradation. When forest landowners become concerned that they will not be allowed to harvest their trees in a few years, they are going to harvest sooner rather than risk not being able to harvest at all. Large forest landowners then seek to subdivide to sell large lots to new owners, convinced they will never be allowed to harvest again.

In a time when activist groups are attempting to convince local jurisdictions to include the presence of lights, noise, and pets as factors justifying factors for increasing buffer widths, requiring large pasture acreages per animal unit on the property, and generally micromanaging human activities in our landscapes, the people being managed feel threatened. When policy-makers develop rules adopting the activists’ prescriptions in order to avoid litigation, the citizens are likely to respond by simply not complying with the new restrictions.

The people suffering the weight of land use restrictions on their use of their property are increasingly turning to the courts for relief because they feel that their local governments are not willing to listen or work with them. It’s an expensive and extraordinarily time consuming option, but often the only form of redress open to them. So, in many places around the nation, home and landowners are banding together to share the costs of litigation. This way, or through the assistance of public interest law firms that are qualified to manage cases from the local level all the way to the U.S. Supreme Court, they are able to bring their voices and concerns to an imperfectly balanced playing field.

Having learned that getting favorable legislation passed is often only the first round in a complex process, more local and state governments are being offered the choice to be sued by one or more activist organizations, or by their own citizens.

Meanwhile, whether in town or out in the countryside, individual home and landowners are facing the choice of whether to comply with or whether to defy individual provisions of overly onerous rules and regulations. This fraying around the edges of the rule of law is not a good thing, but it is a reality . . . and in most cases, it’s an avoidable reality.

First, before entering into a regulatory process, government should be able to demonstrate that a problem needing a solution actually exists. The nature and scope of the problem should be confirmed by empirical science.

Next, government needs to notify the people whose activities will be regulated of the intent to regulate. This notice should be sent individually by mail to every citizen who will be affected by any new regulations. These people should also be invited to participate in the process of developing solutions to the identified problem(s).

Third, every effort should be made to solve the identified problem(s) through education and voluntary programs.

Finally, if education and voluntary programs do not provide an adequate solution, a regulator framework can be put in place as the last resort. The process of developing such regulations not only needs to take place in the public space, but it also needs to involved the full participation of agreed upon stakeholder representatives from all groups that will be directly impacted by the regulations.

The financial burden of providing a public good through regulation should then be born by society as a whole, so the individual landowner does not have to bear a disproportionate share of the load.

If this general process is followed, there will be a greater chance that those impacted by the regulations will be more willing to stay on the compliance side of the line, rather than crossing over in defiance.

We can have excellent ecosystem protections while also allowing home and landowners full exercise of their property rights. We can enlist the support and assistance of those landowners through an imaginative and effective combination of education, incentives and collaborative projects. The alternative is an onerous, burdensome regulatory environment which will be observed more in defiance than compliance, and watch our ecosystems go into decline in an angry and confrontational atmosphere.

Compliance or defiance. It’s a choice that we are making at every level, whether we have been aware of doing so or not.

Compliance or defiance. Which are we going to choose?


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