A proposal for amending administrative law to facilitate adaptive management

Abstract

In this article we examine how federal agencies use adaptive management. In order for federal agencies to implement adaptive management more successfully, administrative law must adapt to adaptive management, and we propose changes in administrative law that will help to steer the current process out of a dead end. Adaptive management is a form of structured decision making that is widely used in natural resources management. It involves specific steps integrated in an iterative process for adjusting management actions as new information becomes available. Theoretical requirements for adaptive management notwithstanding, federal agency decision making is subject to the requirements of the federal Administrative Procedure Act, and state agencies are subject to the states’ parallel statutes. We argue that conventional administrative law has unnecessarily shackled effective use of adaptive management. We show that through a specialized ‘adaptive management track’ of administrative procedures, the core values of administrative law—especially public participation, judicial review, and finality— can be implemented in ways that allow for more effective adaptive management. We present and explain draft model legislation (the Model Adaptive Management Procedure Act) that would create such a track for the specific types of agency decision making that could benefit from adaptive management.