UCD School of Law Vol. 9 No. 1Environmental Law Society March 1985

Environmental Review of Outer ContinentalShelf Development: the Fint Ridge Legacyby Fern Shepard

Norton Sound, Alaska

When Prudhoe Bay on Alaska's NorthSlope was confirmed in 1968 to hold oilreserves of up to 10 billion barrels, a newrecord was established for the largestpetroleum deposit in the United States.The discovery's magnitude seized theattention of the domestic oil industry.Alaska's outer continental shelf (OCS)has been abuzz with activity ever since,as dozens of oil companies search forcomparable reserves.

Norton Sound, on Alaska's westerncoast, opens into the Bering and ChukchiSeas. Native towns and villages dot itscircumference, with Seward Peninsula tothe north and the mouth of Alaska'sprincipal river, the Yukon, to the south.Icebound during the long winters, duringthe summer Norton Sound is an estuaryfor numerous bird species; a home forporpoises, walrus, and seals; and part ofthe migratory pathway for bowhead,sperm, and beluga whales.

Norton Sound soon may be home foroffshore oil drilling platforms. The centralportion has been leased by the U.S.Department of the Interior to companiesseeking exploitable reserves. But as thecompanies gear up to explore theirtracts, the human residents fear that theregion's wildlife, its delicate ecology, andtheir traditional cultures are in jeopardy.Before any exploration begins, they urgeassessment of the possible adverse ef-fects and the precautions necessary toavert their occurrence.

This article sketches one of the hurdlesthat the Norton Sound community and

others concerned about the impacts ofOCS development now face. Although aprimary goal of the National Environ-mental Policy Act was to provide ad-ditional consideration of environmetnalimpacts in such situations, the means todo so could be precluded by a technicalreading of the U.S. Supreme Court's FlintRidge decision.

Statutory Framework for OCSDevelopment

Petroleum and natural gas reserves onthe OCS of the United States representan enormous potential for energy in-dependence. Divorced from the whims ofOPEC and international politics, domes-tic OCS supplies have attracted theattention of the federal government andthe energy industry. Engineering ad-vances have provided an indispensiblefoundation for expanded OCS opera-tions by permitting safer and more ef-ficient development at greater depthsand distances from shore. However, thehighly publicized Santa Barbara andNorth Sea blowouts, coupled with mas-sive oil spills in the Delaware Riverand offthe Massachusetts coast, have engen-dered potent opposition to OCS devel-opment without stringent environmentalsafeguards.

The federal government regulates de-velopment activity on the OCS under theOuter Continental Shelf Lands Act(OCSLA), 43 U.S.C. §1331 et. seq. Sincethe 1978 amendment of OCSLA, fourdistinct stages in development of an

offshore oil well have been defined underthe Act: (1) specification of a five yearleasing plan by the Department of theInterior; (2) lease sales of tracts on theOCS; (3) exploration for oil and gas bythe lessees; and (4) development andproduction. Each stage is subject toseparate and independent governmentalregulation. OCSLA itself defines its pur-pose as providing for "expeditious andorderly develpment, subject to environ-mental safequards." 43 USC §1332(3).

The National Environmental Policy Actof 1969 (NEPA), 42 U.S.C. §4321 et. seq.,expresses a federal policy to addressenvironmental impacts, and generallyapplies to all federal actions regardless oftheir underlying source of authorization.NEPA requires the preparation of anenvironmental impact statement (EIS)for all "majorfederal actions significantlyaffecting the quality of the human en-vironment." 42 U.S.C. §4332(2) (C). Giventhe definite federal involvement in OCSresource development under OCSLA,there is little question whether NEPAapplies. The issue is when: with fourdistinct stages, when is an EIS required?

The issue raised at Norton Sound iswhether a site-specific EIS is required atStage 3, when leaseholders begin ex-ploring their OCS tracts for recoverableresources. EIS's are not currently re-quired until Stage 4, when developmentand production occur. However, thereare two critical characteristics of Stage 3.First, significant physical activities com-mence at this stage with platform in-stallation, sonic testing, and initiation ofdrilling. For the first time in the process,

the twin dangers of gas blowouts and oilspills are real possibilities. Second, theUnited States Supreme Court recentlyindicated that under OCSLA the ex-ploration stage may be the first ap-propriate time for environmental review.The Court concluded:

The stated reason for this four partdivision was to forestall prematurelitigation regarding adverse environ-mental effects that all agree willflow, if at all, only from the laterstages of OCS exploration andproduction. Sec'y of the Interior v.California, - U.S. -, 104 S. Ct.656, 671 (1984).

OCS Exploration ShouldRequire an EIS

The operative language of NEPA re-quires an action "significantly affectingthe quality of the human environment".The initiation of exploration on the OCSprobably meets this requirement becauseof the visual and physical impacts, andthe potential for oil leakage and blow-outs. Regulations adopted under theOCSLA recognize that an EIS may berequired by NEPA prior to approval of anexploration plan. See 30 C.F.R. §250.34-4 (1984). However, further analysis sug-gests that this approach may be pre-cluded by Flint Ridge Development Co. v.Scenic Rivers Assn. of Oklahoma, 426U.S. 776, 96 S. Ct. 2430, 49 L. Ed.2d 205(1976).

Statutory Conflict Doctrine

In Flint Ridge, "a clear and funda-mental conflict of statutory duty" be-tween the governing statute's 30 dayreview period and NEPA's EIS require-ment led the Supreme Court to concludethat compliance with NEPA could not berequired. The Flint Ridge statute, theInterstate Land Sales Full Disclosure Act,required that land developers file an

informational statement prior to landsales. To shield developers from costlydelay, the Disclosure Act provides thatthe statement automatically becomeseffective 30 days after filing unless foundinadequate by the Secretary of Housingand Urban Development. The Courtfound that the Secretary had discretionto suspend the statement's effective dateonly if it was inadequate, but not torequire an EIS. Quoting from the Con-gressional Record, the Court concludedthat "each agency of the Federal Gov-ernment shall comply with the directivesset out in [NEPA], unlessthe existing lawapplicable to such agency operationsexpressly prohibits or makes full com-pliance with one of the directives im-possible . . . " 426 U.S. at 787-88. TheCourt observed:

It is inconceivable that an [EIS]could, in 30 days, be drafted,circulated, commented upon, andthen reviewed and revised in lightof the comments ... 426 U.S. at788-89. Draft [EIS's] on simpleprojects prepared by experiencedpersonnel take some three to fivemonths to complete... Id. at 789 n.10.

Since an EIS cannot be completed in30 days, and the Disclosure Act's 30 dayreview period cannot be suspended to doan EIS, NEPA was held inapplicable tothe land sales process.

Statutory Conflict Between NEPAand OCSLA

Strict application of Flint Ridge's hold-ing could mandate preclusion of an EISfor OCS exploration plans. OCSLA re-quires that the Secretary of the Interiorreview exploration plans within a 30 dayperiod, which is clearly incompatible withEIS preparation. The Secretary of theInterior's only authority to reject a plan isif the proposed activity "would probablycause serious harm or damage to Wie...

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property ... any mineral ... nationalsecurity or defense ... or ... marine,coastal, or human environment," 43 U.S.C.§1334 (a) (2) (A) (i), and the plan cannot bemodified to avoid the offending con-dition. An exploration scenario involvinga probability of "serious harm or damage"is far more extreme than the trigger for anEIS of "significantly affecting the qualityof the human environment". Thus, theSecretary does not appear to have dis-cretion to reject a plan in order to requirean EIS unless the "serious harm ordamage" standard is met.

In NRDC v. Berglund, 609 F.2d 553,558(D.C. Cir. 1979), the court stated that"certainly, an agency cannot escape therequirements of NEPA by excessivelyconstricting its statutory interpretation inorder to erect a conflict with NEPApolicies." The Interior Department didn'tapparently anticipate such a conflict,since OCSLA regulations require reviewof the environmental impacts of anexploration plan to determine if an EIS isrequired priorto the plan's approval. Butif the 30 day approval period cannot besuspended and an EIS unquestionablytakes more than 30 days to complete, it isnot clear how a direct conflict can beavoided using the Flint Ridge analysis.

Taken literally, the Flint Ridge holdingwould preclude EIS preparation when-ever a governing statute's terms conflictwith the time-consuming environmentalreview process. However, significant dis-tinctions between the Flint Ridge factsand the realities of OCS developmentsuggest that such literal application isinappropriate.

First, in Flint Ridge, the DisclosureAct's 30 day review period was expresslydesigned to shield developers from cost-ly delays resulting from administrativereview of the statements. To require EISpreparation would clearly frustrate Con-gress' rationale for limiting the reviewperiod. In contrast, the legislative historybehind the 30 day limit on OCS ex-ploration plan review is silent. There is noevidence of a clear Congressional pur-pose, and the rationale of shielding oilcompanies from delays, by analogy toFlint Ridge, is unconvincing. OCS de-velopment is complex, heavily regulated,and inherently time-consuming. Thus,requiring EIS completion before explora-tion plan approval would not necessarilycircumvent Congressional intent.

Second, the Disclosure Act did notrefer to compliance with NEPA. On theother hand, regulations interpretingOCSLA repeatedly refer to NEPA's re-quirements. One suggests that an EISmay be required before exploration planapproval. See30 C.F.R. §250.34-4 (1984).

Finally, the need for an EIS before OCSexploration activities begin is far morecompelling than prior to FlintRidge's realestate sales. Flint Ridge involved con-sumer rather than environmental pro-

Evolution Of A Wilderness Billby Mary Scoonover

After years of litigation, lobbying, hear-ings and boundary adjustments, theCalifornia Wilderness Bill was signed intolaw without fanfare last September. TheBill designates 25 new wilderness areasand 14 additions to existing wildernessareas, providing protection for 1.8 millionacres. Portions of Yosemite NationalPark and Sequoia and Kings CanyonNational Park were also designated aswilderness. The Bill directs the ForestService to complete wilderness studiesfor three areas-the Hoover WildernessAdditions in the Toiyabe National Forest,the Pyramid Creek roadless area in theSan Bernadino National Forest, andthree portions of the Carson-Icebergarea in the Stanislaus and Toiyabe For-ests-to be completed within 3 years.1,700,000 acres were designated as "fur-ther planning areas" to be studied duringthe ongoing forest planning process,where timber sale, method of harvest,and watershed management decisionsare made. Over 3 million acres of road-less lands were released for develop-mnent.

Inspired and directed by the late Con-gressman Phil Burton, the U.S. House ofRepresentatives had passed wildernessbills three previous times. The Senate,however, never approved them becauseof strong anti-wilderness advocates onthe Senate Energy Committee, and be-cause former California Senator S. I.Hayakawa opposed designating new wild-erness areas in his home state. Aftermonths of negotiating, California Sena-

Mat Ridge (continued from page 2)tection issues, and it can be argued thatex.emption from the EIS requirement inthat context risks significantly less thanin the context of OCS oil exploration. Theadverse environmental impacts from anoil spill or blowout during exploratorydrilling are potentially severe and ex-tensive. The entire Norton Sound re-gion-including the sea life, birds, andhumans dependent on it-would bethreatened by such an incident.

Conclusion

As of this writing, no court has con-sidered whether an EIS is precluded at

tors Alan Cranston and newly electedPete Wilson co-sponsored the successfulCalifornia Wilderness Bill. Their com-promise eliminated 19 areas and reducedothers in size by comparison with theApril, 1983 House version. Wild andscenic classification for 83 miles of theTuolumne River and establishment of anational scenic area in the Mono Lakebasin were tied to this wilderness bill. TheSenate leadership acknowledged the com-promise, and the Bill passed the Senate.After years of Senate opposition, andwithout the leadership of Phil Burton, theHouse passed the Cranston-Wilson com-promise without change last September.

Origins

When signed into law in 1964, theoriginal Wilderness Act incorporated ex-isting Forest Service wild and wildernessareas into the National Wilderness Pres-ervation System. It required the ForestService to review only their existingprimitve areas and immediately adjacentlands for possible wilderness desig-nation. Other Forest Service lands whichcould qualify as wilderness but were notpreviously classified ("de facto wild-erness") were not included in the man-datory review process.

Many of these de facto wildernessareas were imminently threatened by de-velopment. Conservationists began pres-suring the Forest Service to extend sometype of protection to pristine areas notprotected by the 1964 Act.

the exploration plan stage due to theOCSLA's 30 day review period. Techni-cal application of Flint Ridge's statutoryconflict doctrine could result in pre-clusion. However, both factual and legaldifferences between OCSLA's explora-tion stage and the Interstate Land SalesFull Disclosure Act suggest that site-specific EIS's for the former should notbe precluded by operation of the statu-tory conflict doctrine.

Fern Shepard will graduate from UCDavis LawSchool this spring. She workedforthe Sierra Club LegalDefense Fund inJuneau, Alaska in spring 1984 throughthe law school's clinical program.

In 1967 the Chief of the Forest Serviceissued a directive to his Regional For-esters to review roadless areas andsubmit a list of areas recommended tobecome new "study areas" for possiblewilderness designation. Few areas wererecommended as Regional Foresterslargely ignored this directive for fouryears.

However, in 1971 the Nixon Adminis-tration formulated an Executive Order toprevent further erosion of wildernesslands. The order was designed to a)safeguard all wilderness lands due forreview and Congressional action underthe 1964 Act; b) require the ForestService to identify and protect areas ofwilderness continguous to existing Prim-itive areas until Congress acted; and c)require the identification of all de factowilderness areas by December 31, 1972.The order would have given firm interimprotection to the unprotected pristineareas controlled by the Forest Service.

In order to forestall signing of theproposed order, Forest Service ChiefJohn R. McGuire took the position that itwas unnecessary because of the road-less area review program established in1967. The Chief set a June 30, 1972deadline for recommendations on newstudy areas, and attempted to stan-dardize review procedures.

Roadless Area Inventory

The 1971 inventory of roadless andundeveloped areas was the first step inthe Forest Service's review. This inven-tory was to include all roadless lands,regardless of present commitments orfuture plans for timber harvesting, roadconstruction, or other development. TheForest Service identified approximately1,449 Roadless Areas containing 56 mil-lion acres.

Unfortunately, the Chief did not define"roadless". As a result Regional Forestersall over the United States applied dif-

ferent criteria to determine "roadless-ness". Areas with the same resource androad characteristics would therefore re-ceive entirely different treatment in dif-ferent regions.

In the rush to meetthe Chiefs deadline,many pristine areas were not even identi-fied as having wilderness potential.

Conservationists objected thatthe timeframe prevented the Forest Service fromdoing the research necessary to selectcandidate areas based on objective cri-teria. Since most of the areas weresnowbound, no on-site investigationscould be conducted: the Forest Servicehad to rely on existing data. Conser-vationists also argued that there wasinadequate time for state or federalagencies, conservation organizations, orthe general public to conduct their ownstudies or to examine the informationavailable concerning over 1,400 roadlessareas on the inventory lists.

Sierra Club v. Butz

Meeting with top officials failed toconvince the Forest Service to correctdeficiencies in the inventory program.The Sierra Club and other conservationorganizations brought suit against theService, claiming that it acted illegally in1) failing to prepare and consider impactstatements required by the National En-vironmental Policy Act (NEPA); 2) ne-glecting to perform adequate multi-dis-ciplinary studies in violation of NEPA andForest Service regulations; 3) providinginsufficient procedures for public parti-cipation in violation of the Constitution'sdue process clause, the Multiple Use-Sustained Yield Act, and Forest Serviceregulations; and 4) violating Forest Ser-vice criteria for determining the lands tobe recommended as New Study Areas.

The complaint was filed on June 16,1972. The federal district court promptlyissued a temporary restraining orderagainst timber cutting, road building, orany other development of the inventoriedroadless areas afterJuly first of that year.Shortly before trial, the Forest Serviceordered that an environmental impactstatement (EIS) be prepared for each ofthe 1,449 inventoried roadless areasbefore allowing any change in theirwilderness quality.

After determining that his directive was,indeed, a commitment to comply withNEPA, the court dissolved the injunctionagainst timber harvesting and road build-ing. It refused to consider the otherclaims raised by the Sierra Club, basedon the assumption that the Forest Servicewould comply with its own regulations inpreparing and considering ElSs for spe-cific areas.

The court noted that the adequacy ofthe ElSs, the procedures for publicparticipation, and the criteria applied in

determining new study areas could becontested at a later date if and whenparticular areas were threatened by de-velopment proposals. Sierra Clubv. Butz,3 E.L.R. 20292 (9th Circuit, 1973).

RARE I

The Forest Service did not remain idleduring the months they battled in court.On July 1, 1972 the Regional Forestersrecommended to the Chief 180 roadlessareas containing six million acres forstudy in California. The Chief, in turn,utilized the Roadless Area Review andEvaluation (RARE 1) to estimate thepotential cost and benefits associatedwith the roadless areas recommendedfor further study.

The Roadless Area Review and Evalua-tion utilized computerized indices toquantify wilderness and economic val-ues. Although the indices included an

The United States and International WildlifeConservation Treatiesby Mark C. Trexler

Wildlife conservation has long beenthe subject of international cooperation.

_- .... Within the U.S., a surprising number ofgovernmental agencies have responsibil-ities within this area, and legislativeconcern is slowly being focused on therapid depletion of the world's wildlife

7 " resources. Evidence of this concern canbe seen in the proposed Elephant Pro-tection Act of 1979, which would havebanned the import of elephant ivory,

.. established an international conserva---- tion corps, and set up a system of wildlife

resource attachds. A more successful-_ effort was the passage of the Inter-

national Environment Protection Act of1983. This act requires the Secretaries ofState and of Interior to review the ef-fectiveness of current U.S. activities re-

I> -lating to international wildlife conserva-tion, while at the same time calling for a

A "U.S. strategy, including specific policiesand programs, to protect and conservebiological diversity in developing coun-tries." The resulting reports are schedul-

red for publication early this year.S - A primary focus of U.S. international

-M. wildlife policy has been the developmentof formal international agreements. Manysuch agreements have been enacted inrecent decades in an attempt to addressthe problems of habitat destruction, ex-

(con tinued on page 6)

Effectiveness Index, a Total OpportunityCosts, and an Effectiveness/Cost ratioIndex, the cornerstone was the QualityIndex. This was a method to compare therelative wilderness "quality" of the var-ious roadless areas. Unfortunately, theForest Service chose to compare littlemore than the areas' scenic and recrea-tional aspects rather than analyzing thewildness elements-the factors Con-gress reviews when deliberating on wild-erness proposals. Scientific, educational,and wildlife values of the roadless areaswere considered only in the light ofrecreational uses; outstanding geologicfeatures, rare plants, and endangeredspecies were not rated at all.

Roadless areas received a QualityIndex score from 0 to 200. Many of theitems rated required highly subjectivejudgment-making. Forexample, roadlessareas could score as many as 24 pointsfor having numerous lakes; deserts, grass-land, and other dry areas could qualifyfor only four points. One criterion scoredan area high for little or no influence ofhumans, penalizing an area for trails and

campgrounds; other criteria rewardedthe presence of numerous trails andcampsites.

Even though acreage came into con-sideration in the determination of theQualiy Index (large areas receiving asmany as 12 points, small areas zero), anarea's acreage was multiplied by itsQuality Index in order to determine itsEffectiveness Index. Thus the Effective-ness Index reflected total acreage farmore than wilderness quality. A smallhigh quality area would likely score lowerthan a large, low quality area.

After all the indexing was done theproposed new study list totaled 235 areaswith 11 million acres and the public wasonce again asked to comment. Over7,000 letters came into the Forest Service.The vast majority of people asked formore areas to be added to the new studylist. Twelve persons were favorable of theRARE process; 1,489 people were criticalof the program. Ninety-five percent ofthose expressing an opinion about thenew study list favored studying morethan 235 proposed areas, and one-third

wanted all areas studied.

RARE II

This overwhelming opposition to theForest Service RARE I recommendationsled tothesecond review of roadless lands(RARE II) in which the Forest Servicerecommended only 15.4 million acres ofthe more than 62 million acres eligible.The goal of this second review was tomake management decisions for thoseroadless areas whose resource valueswere known and for which a consensusamong competing interest groups couldbe reached. Areas studied were recom-mended as wilderness, non-wildernessorfurther planning (where more data wasneeded to make a decision or no con-sensus was possible). RARE II wascompleted in early 1979.

In California, the Forest Service in-ventoried about 6.3 million acres underRARE II. After preparing an environ-mental impact statement (EIS), the For-

(continued on page 10)

(continued from page 5)cessive exploitation, and the introductionof exotic species. Many treaties arelimited to a few countries and focus onindividual species or groups of species;some are actually international wildlifemanagement agreements and providefor the apportionment of the harvest,rather than the elimination of exploi-tation. Some examples include:

- The Convention between the UnitedStates of America and the Union ofSoviet Socialist Republics Concerningthe Conservation of Migratory Birdsand Their Environment. 1976.

- The Convention on Conservation ofNorth Pacific Fur Seals. 1957 (amend-ed 1963).

- The Convention between the USA andCanada concerning Sockeye and PinkSalmon Fisheries. 1930 (amended1956).

- The Agreement on the Conservation ofPolar Bears. 1973.

- The Convention for the Regulation ofWhaling. 1931.

Some agreements, however, are muchbroader in scope. This article will brieflyintroduce those Conventions which aremost important to the United States.They generally receive little media cover-age, but if effectively implemented theycould have a significant impact on thedeteriorating state of the world's wildlife.

The Convention on NatureProtection and Wildlife Preservation

in the Western Hemisphere

The Western Hemisphere Conventiondoes not provide global coverage, but itdoes include the biologically richestwildlife habitats in the world, the tropicalforests of Central and South America. Itis also the oldest of the Conventionsoutlined here, having been signed in 1940and entering into force in 1942. TheContracting States agree to establishnational parks and other types of re-serves as soon as their circumstancespermit; to prohibit commercial exploi-tation of national parks; to adopt, or atleast propose the adoption of, legislationand other measures necessary to imple-ment their conservation efforts; and tocooperate among themselves in promot-ing the objectives of the Convention.

Although various meetings have beenheld over the years, the Western Hemi-sphere Convention has been singularlyineffective. In recent years, however, theU.S. government and conservationistshave again become interested in theConvention due to its significant con-servation potential, and some progressmay result.

The Convention Concerning theProtection of the World Cultural

and Natural Heritage.

The World Heritage Convention wasadopted in 1972 and entered into force in1975. Its objective is to protect sitesaround the world unique for the culturalor natural heritage they contain. TheConvention imposes a number of dutieson Party States. For example, PartyStates are to identify, protect, conserveand transmit to future generations thecultural and natural heritage located inthat State; develop comprehensive plan-ning, scientific, administrative and finan-cial programs to allow for the protectionof the State's heritage; and submit aninventory of national heritage sites to theWorld Heritage Committee for compila-tion into a "World Heritage List". TheConvention is unique among conserva-tion conventions in its establishment of aWorld Heritage Fund, financed by theParties, which is to be made available tohelp countries protect heritage sites.

Although it can be said that the letter ofthe Convention is being followed it is notreally clear what is being accomplished.There are now lists of heritage sites, but itis often unclear whether the sites areactually being protected. Better moni-toring of the status of these sites isneeded. Moveover, procedures for use ofthe World Heritage Fund should bereevaluated. While the Fund is acclaimedas a truly progressive feature of thisConvention, there is little evidence that itis having much impact.

The Convention on Wetlands ofInternational Importance Especially

as Waterfowl Habitats.

This Convention, known as the "Ram-sar Convention" because it was signed inthe city of Ramsar, Iran, was adopted in1971 and entered into force in 1975..Itsprimary objective is to slow the rate ofdestruction of the world's wetlands, andto promote recognition of the funda-mental ecological functions performedby wetlands, as well as their economic,cultural, scientific and recreational val-ues. The Convention provides for PartyStates to designate at least one nationalwetland for inclusion in a List of Wetlandsof International Importance, and requiresthat Parties consider their internationalresponsibilities for the conservation andwise management of waterfowl stocks,and establish wetland reserves. Althoughit is currently considering ratification, theU.S. is not a Party to the Convention. U.S.membership is probably not as importantfor the conservation of U.S. wetlands as itis for making available U.S. funds tofurther the Convention's goals inter-nationally.

Good intentions aside, it has become

clear since 1975 that the provisions ofRamsar are insufficient to achieve thepolicy aims desired. Its provisions areeasily complied with without actuallyprotecting any wetlands, and the effectsof the Convention have been correspond-ingly weak. There has been little ag-gressive national interest in updating andstrengthening the provisions of the Con-vention to bring them into line with thespirit underlying Ramsar.

The Convention on InternationalTrade in Endangered Species of

Wild Fauna and Flora.

CITES, as this Convention is morecommonly known, was adopted in 1973and entered into force in 1975. Its goal isto protect selected species of wildlifefrom overexploitation resulting from in-ternational trade in individuals of thespecies or their products. The Conven-tion's permit system applies to wholespecimens, as well as to any recogniz-able parts or derivatives. Party States areresponsible for assigning administrativeand scientific functions under the Con-vention to a governmental agency. CITESis unique for the administrative infra-structure established to implement it, andis widely heralded as the most successfulinternational wildlife conservation con-vention. CITES is dealt with in moredetail in the next article.

International Wildlife Law

These four treaties have all beenviewed as important governmental stepsto promote environmental conservation.The tendency of governments to focuson legal instruments as a means toaddress joint problems is a natural one.In most countries conservation problemsare generally addressed by passing a law.The problems faced in implementingconservation legislation at the nationallevel, however, are magnified at theinternational level. International agree-ments tend to serve as least commondenominators of governmental policy,and the final product of internationalnegotiations on a issue can be far weakerthan a realistic assessment of the prob-

lem being addressed would demand.Agreements are often hortatory in na-ture, most so-called "mandatory" pro-visions are sufficiently vague so as toallow a great deal of discretion, andenforcement generally relies on nationalimplementing legislation. The "enforce-ment" of treaty terms is therefore asomewhat ambiquous concept. Rarely isan international body given policingpowers, and the degree to which inter-national obligations are translated intonational laws (not to mention their en-forcement) varies very widely, and isoften not even known.

On the positive side, international a-greements establish both policy goalsand legal commitments on the part ofsignatory nations. These can hopefullybe used by interest groups within coun-tries to push for national action, and canalso serve an educational function forthegovernment and society in general. Andwhile domestic legislation and policiesare, of course, within the sovereigncontrol of the individual nation, othersignatories to an agreement do have alegitimate interest in a Party's domesticimplementation of that agreement. Un-fortunately, this feature of internationalagreements is inadequately used in theconservation arena. Almost no one everreally checks to see what the majority ofcountries are doing to fulfill their wildlifeprotection obligations under a givenagreement. If the letter and intent ofcurrently existing treaties were beingeffectively implemented by all PartyStates, the status of wildlife would bemuch less alarming.

Conclusions

It is far easier and more glamorous todevelop a law, even an international one,than it is to follow through on itsimplementation. The status of implemen-tation of most international legal meas-ures to protect wildlife resources is notwell understood. Until a higher priority isput on actually assessing the factorsunderlying the successes and failures ofsuch measures, the volumes of treatieswill increase while the species continueto disappear. Even now there are calls fornew global conventions on protectedareas and genetic resources conser-vation. The lessons which the implemen-tation of existing agreements have toteach us about the how's and why's ofinternational cooperation on environ-mental matters should be learned beforewe embark on new ventures. Reflectingon past experience should improve ourapproach to new problems and issues.

Mark Trexier is a Research Associate ofthe International Union for Conservationof Nature, and has served as a consultantto the Economic Commission for Europeon the implementation of wildlife treaties.

FOR SALE Parrots,Leopard Skin Coats,and Crocodile ShoesLaura H. Kosloff

Introduction

You are shopping for your daughter'sChristmas present, or perhaps a birthdaypresent for your spouse. Pets of all sizesand shapes are favorite choices for both.Birds are a beautiful choice. How about ared-spectacled parrot? How about a cat?Easier to take care of, and more cuddly.You consider an elegant blue-point Si-amese, but it lacks that special some-thing that will tell your loved one that youreally care; ah, but what about somethingmore exciting, an ocelot perhaps? Tropi-cal fish, perhaps. Your eyes light on theguppies, but everybody has guppies;now that Asian arowana in the cornertank looks more interesting.

The exotic species mentioned abovehave little in common except for twosmall details. The first is that they are allillegal to import into the U.S. and 86 othercountries in the world under restrictionsestablished by the Convention on Inter-national Trade in Endangered Species ofWild Fauna and Flora (CITES). CITEShas been regulating the internationaltrade in wildlife and wildlife products foralmost ten years. From its start with tenratifying nations in 1975 and a Secretariatstaff of one, it has grown to includealmost 90 countries, and boasts a Sec-retariat of four professionals and threesupport staff. It has governments andnon-governmental organizations through-out the world rooting for it. It holds aConference of the Parties every twoyears at which policy issues are debated,resolutions are passed, and species po-tentially threatened by the wildlife tradeare added to the existing Appendices.Overall, CITES is widely hailed as the

most successful conservation conven-tion in existence.

Oh, yes, the second detail. If you tryhard enough-and sometimes that isn'tvery hard-you can probably find thespecies mentioned above in this country.The pet trade in America is a boomingbusiness. Most of us may think of boxturtles and guppies when we think of thepet trade, if wethink of it at all, butthis is anaive perception. Even a legally importedbird can command a price of over $5,000.And few of us realize that the U.S. alonelegally imports and exports some onebillion dollars of wildlife and wildlifederived products every year. Smugglingadds another several hundred milliondollars a year to this figure.

Wildlife TradeAs A Conservation

and Legal Issue

In the 1960's and 1970's numerousenvironmental laws were enacted in theU.S. and abroad. Without some frame-work for control and regulation of humanactivities, many resources were beingdepleted at alarming rates for short termprofits, in spite of the potential for longterm disaster by overexploitation.

Wildlife has historically been a a re-source that has been rapidly depleted.Under many systems of law, you couldnot claim ownership of a wild animal untilyou had killed it; hence the incentive tokill it before someone else did. Theproblem of wildlife conservation tran-scends the acknowledged authority ofgovernments to regulate within their ownborders; borders are political and notbiological, and are not necessarily re-

spected by living plants and animals.Although clearly a substantial amount ofprotection can be afforded to wildlife on astate or national level, much can only bedone by cooperation between countries.

The accelerating rate at which speciesextinctions are occurring has given riseto more and more alarm during the lastdecade. About half of all recorded mam-mal extinctions have occurred in the pastsixty years; some estimates are that onemillion species of wildlife will be lost bythe year 2000. Reasons to be concernedover the loss of species include the lossof biological and genetic diversity for thestability of ecosystems, loss of potentialsources for economic and societal gainsuch as agricultural, medical, and in-dustrial uses of wildlife, and the aestheticand ethical consequences of willfullycausing the extinction of a species. Thereare many causes that underlie the pre-carious state of the planet's wildlife, butexperts cite the primary ones as beingloss of habitat, overexploitation, and theintroduction of exotic species which cancompete with and displace native species.

There have been a number of attemptsover the years to pursue wildlife con-servation at the international level; someare outlined in the previous article. De-spite the existence of such agreements,pressures on wildlife as a result of loss ofhabitat and increasing trade have con-tinued. Efforts during the 1960's byvarious non-governmental organizations(NGO's), governments, and individualsin the conservation community culminat-ed in 1973 in the signing of CITES, anagreement focusing exclusively on theissue of international trade as a threat tospecies.

The Convention On InternationalTrade In Endangered Species

(CITES)

How does CITES translate into some-thing that affects what you can buy at thefurrier's or through the pet store? A goodexample is the Asian arowana mentionedabove. There are perhaps six or sevenarowana species spread through SouthAmerica, Africa, and Asia. There are atleast three varieties of the single Asianspecies, usually referred to as the red,silver, and golden varieties. The Asianspecies is apparently quite rare, andprices on specimens of the red varietyhave been quoted as high as $7,000. Thespecies has been listed on Appendix I ofCITES since 1973, a status which shouldprohibit international commercial tradein it; no export is suppposed to occurfrom the country of origin unless theparticular specimen falls into specificallydefined exceptions, primarily for pur-poses of scientific exchange.

But walk into some tropical fish stores,

and you will see Asian arowanas for sale.No hiding, no whispered "psssst! Hey,buddy, interested in an endangeredspecies?"; they are right next to theguppies and the gouramis. If the storedoesn't have any on display, an em-ployee will often tell you either that theyjust don't have any right now or that theydon't get the Asian varieties in very often;perhaps he or she will even know thatthey are rare. In a recent informal surveyin Sacramento, California, however, em-ployees in only one of eight pet storesresponded to a query for Asian arowanasby stating that selling the Asian arowanawas illegal. In one popular tropical fishstore, in a tank which is prominentlydisplayed for customers, swims exactlysuch a fish described as a "goldendragon arowana" and as being very rareand coming from the "Communist in-fested jungles" of Thailand. The descrip-tion goes on the say that it is a wonderany of the arowanas survived the threeday trek out of the jungle. It is being soldfor $2500, and it was smuggled into theU.S.

CITES has been embraced by con-servation leaders worldwide and is hailedas a major conservation achievement.Yet illegal trade appears to be thriving inspite of the ten year old treaty. And thetrade in live animals, as extensive as it is,is only a small portion of the problem thatCITES was enacted to address. The inter-national trade-both legal and illegal-inwildlife products far surpasses the tradein live animals, both in numbers ofspecies involved and economic value,with U.S. seizures of illegal wildlife andwildlife products alone amounting toabout $100 million dollars per year. Howmuch more is getting smuggled throughcan only be guessed at, but it is certainlya great deal. Is CITES a failure? Before ananswer can even be ventured, it isnecessary to understand the premisesand provisions of the Convention and theproblems involved in implementing acomplex international treaty.

Structure and BasicsOf the Convention

The stated goal of CITES is to com-pletely stop the international trade in

those species of plants and animalswhich are seriously threatened by over-exploitation, and to monitor and controltrade in species which may not yet beseriously threatened but which could bein the future. The mechanism by whichthese goals are supposed to be im-plemented is a system of permits andprohibitions as well as specific rulesregulating the issuance of trade permits.The Convention establishes three lists ofspecies. Appendix I consists of thosespecies that are not to be commerciallytraded at all. There are currently over 700species on Appendix I; many of thespecies whose endangered status hasbeen the subject of widespread publicconcern are on this list, such as chim-panzees, gorillas, and the big cats.

Appendix II is the longest of the threelists, with some 30,000 species listed(mostof them plants). Appendix 11 speciesmay be traded commercially, with somerestrictions, and usually only need anexport permit indicating that the wildpopulation will not be harmed by theremoval of those specimens in the ship-

ment. A third appendix lists those speciesfor which protective regimes exist inindividual countries, with the intent thatthe international community help en-force that country's laws.

Although the Convention does have aSecretariat with a full-time staff (a fairlyunusual provision in an internationallegal instrument), the Secretariat doesnot direct this complex scheme. Regu-lation is left up to the individual Parties tothe treaty; the Convention mandates thateach Party establish a "ManagementAuthority" to implement the Conventionand regulate the issuance of permits, anda "Scientific Authority" to insure thatpermits are granted according to theconservation criteria set out under theConvention.

The requirement that Conferences ofthe Parties be held every two years isanother unusual provision of the Con-vention. At the Conferences, policy de-cisions are made regarding appendixand enforcement issues. Decisions areusually expressed in the form of resolu-tions and require a majority vote of thoseParties present; actual amendments tothe treaty text are more difficult, as they

Asian Arowana (Scleropages formosus)

require a special meeting and a vote oftwo-thirds of all Parties.

Changes to the Appendices are alsomade at the Conferences of the Parties,but a Party which does not agree to theparticular addition may make a "reserva-tion" to that listing. Many reservationsthat have been taken by Parties have notbeen significant. In some cases, how-ever, reservations have been taken bymost of the Parties which engage inheavy trade in the particular species, thuseffectively nullifying any potential con-servation effect of adding the species toan Appendix.

Notwithstanding this elaborate regimefor regulating the international wildlifetrade, the only provision for evaluatingwhether CITES's terms are in fact beingadhered to is the requirement that Partiesprovide the Secretariat with annual re-ports describing the extent and nature oftrade in and out of their country. Overtheyears, guidelines for what should beincluded in a "good" annual report havebeen suggested, but the quality of annualreports still varies immensely. Analysesof the data provided by the Parties aregenerally accompanied by the caveatthat they don't mean very much becausethe data provided are so incomplete andof questionable accuracy.

Enforcement

Although the intricate scheme createdby the Convention has many positiveaspects not previously incorporated intointernational conservation conventions(such as the requirement that each Partydesignate an agency with specific respon-sibility for the country's international

trade in wildlife resources), the problemCITES attempts to solve is inherentlydifficult to address. Like the drug trade,the illegal wildlife trade is so lucrative thatpeople will always be willing to take therisk. Achieving control in the trade of onespecies often shifts trade to a similarspecies. These shifts are not inherentlybad, but the issue has received lessattention than it should. Another factorinvolves the political nuances associatedwith wildlife trade flows from the ex-porting to the importing countries, whichgenerally follow developing-developedcountry lines. Thirdly, the amount ofresources provided by individual coun-tries for the control of illegal wildlife tradewill continue to vary immensely as longas the wealth and philosophies of nationsdiffer; priorities in poorer countries aresimply not going to focus on the status ofa single species of fish which lives in theheart of an Asian jungle. The globalimplications of accelerating rates ofspecies extinctions may be very signifi-cant but they are often not as widelyrecognized as CITES enthusiasts mightlike to think, or they simply cannot beacted upon for financial reasons.

Inhibiting even the most diligent effortsto comply with CITES is the magnitude ofthe trade. How much illegal trade takesplace is unknown, but in the U.S. alone itcertainly exceeds the $100 million worthof seizures made by the Fish and WildlifeService (FWS) every year. The illegalexport of U.S. wildlife is a particularlydifficult problem, for there is virtually noway to check what goes out of thecountry. Does the amount being seizedrepresent 5% or 50% or 95% of the illegaltrade? Who knows, but more and more

smuggling turns up as Fish & Wildlifeinspectors look in new places for it. Justrecently, for example, FWS began in-specting some of the 800,000-900,000containerized shipments that annuallyenter the U.S. In 1983, FWS inspected 50such containers, at random, and foundillegal wildlife in 30 of them. The illegalcontents of one shipment alone wasworth $700,000.

Even though the U.S. Fish & WildlifeService is probably the best-equippedand best-trained of all the ManagementAuthorities of CITES Parties, the truemagnitude of the task is difficult tocomprehend. 50,000 incoming ship-ments are declared as containing wildlifeevery year. Perhaps 20% of these ship-ments can be inspected by the 36 wildlifeinspectors who are divided among thenine ports of entry through which wildlifemust enter. Very few inspections aredone on the vast number of shipmentswhich could harbor illegal wildlife. At-tempting to control goods brought backby tourists, as well as other forms ofsmuggling, presents additional problems.

In addition, there are the mechanics ofhow items come in through the ports ofentry. Tropical fish, for example, aretransported in styrofoam cartons. Eachshipment may contain more than thirtystyrofoam cartons; each carton maycontain many fish. Opening up thecartons to carefully inspect and identifyall the species inside would be a hor-rendous task, and is clearly not feasible.Protected species can be mislabelled asother species, or the importer can simplyhope that no one will notice a few fish thatdon't show up on the import declarations.There is a good chance she will be right,especially since the importer can avoidthe wildlife inspectors completely byarranging to have the shipment arriveafter 5:00 p.m.

Identification of particular specied isalso not always a simple matter, even if ashipment is opened for inspection. Thevarious species of arowana, to take upthe story of our Asian friend, bear areasonable resemblance to one another,especially when only two inches long.Although wildlife inspectors at the portsof entry do have manuals for identi-fication purposes and do receive trainingin species identification, there are timeswhen no one but an experienced expertcould identify a species in a shipment asbeing different from the species listed onthe declaration forms.

Conclusions

CITES is a significant step forward inthe history of international conservationefforts for several reasons. It incorpo-rates the fact that a piece of paper canperhaps go farther if it has a staff to see toits day-to-day administration and if itprovides for periodic review by Parties to

at least remind them of their legal duties.CITES does attempt to focus exclusivelyon one of the three primary causes forspecies extinctions and cannot be fault-ed for failing to address all causes.

Serious questions remain, however, asto whether CITES is a "success". Defini-tions of success vary from the claim that aperfect correlation of import and exportstatistics means success, to the view thathaving 87 ratifying nations means suc-cess. But has the Convention helped toimprove the status of wildlife speciesthreatened by international trade? Theprovision for annual reports has increas-ed the data concerning wildlife trade.Unfortunately the paucity and dubiousvalidity of that data prevents it fromshowing whether CITES has in factimproved the status of the species it isintended to protect. In addition, theincrease in bloc-voting and vote tradingwhich has occurred with the increase inthe number of Parties, many of whomhave little inherent national interest in thewildlife trade, may be contributing to thepoliticization of the Convention. Thismay decrease the effectiveness of CITESand the ability of the Parties to come toworkable solutions for various tradeissues.

One thing that CITES has promoted isthe involvement of domestic conserva-tion groups as forces on the internationalscene. Conservation NGO's embracedthe concept of CITES in the 1960's andhave maintained their involvement withthe treaty as it has evolved. A mostunusual aspect of the Convention is itsgranting of observer status to NGO's atConferences of the Parties; althoughobservers may not vote, they may parti-cipate in most sessions. This has enabledconservation groups in Europe and theU.S. to keep closely tied to events overthe years. Many conservation groupsfocus on CITES as their primary orexclusive active involvement with inter-national agreements; they see it as pro-viding a more tangible opportunity forconcrete success in protecting speciesthan exists with other internationalagreements. Huge amounts of moneyand effort have been expended on CITESby U.S. conservation groups alone dur-ing the past ten years. Some CITESprojects approved by the Conferences ofthe Parties have been partially or whollyfunded or directed by NGO's. As much asgovernments would like to and do takecredit for CITES, any real success inachieving the Convention's goals is pri-marily attributable to the continuingdedication and the watchdog role playedby NGO's.

Laura H. Kosloff is a graduate of KingHall, and is completing her Master'sthesis on U.S. enforcement of the Con-vention on International Trade in En-dangered Species.

Evolution Of A Wilderness Bill(continued from page 3)

est Service submitted its recommenda-tions to the Secretary of Agriculture, whohad the final administrative decision-making power over the RARE II desig-nations. The Forest Service's recommen-dations differed significantly from thosemade by the state of California. The Staterequested that 1.45 million acres beopened to development as non-wilder-ness, and the remaining 2.8 million acresbe subject to further study. The ForestService recommended 975,201 acres forwilderness designation and that 2.34million acres be opened for develop-ment-about one-third less wildernessand one and one-third times the de-velopable area.

Controversy grew over the 640,000acres the Forest Service released todevelopment that the State sought toprotect as wilderness orfurther planning.Angered by the RARE II recommen-dations, Huey Johnson, then State Sec-retary of Resources, assembled a citi-zen's committee in April 1979 to studyForest Service resource managementpolicy. The resulting report severelycriticized the Forest Service land manage-ment practices and the RARE II process.The report concluded that the ForestService emphasized timber production atthe expense of other natural resourcesand that the RARE II recommendationsfor preserving wilderness ignored citizenrecommendations that were superior toits own findings.

California v. Bergland

In July 1979 the State of Clifornia filedsuit against the Department of Agricul-ture and the Forest Service in an effort toblock the release to development ofnearly one million acres of roadless areasin California. The suit, California v. Berg-land, 483 F. Supp. 465 (E.D. Cal. 1980),charged that the environmental impactstatement was hastily prepared and in-adequate. It requested that the 991,000acres released as non-wilderness beprotected until a site-specific, use-speci-fic analysis was made in an environ-mental impact statement consistent withthe National Environmental Policy Act(NEPA) requirements. Finally, the Statecontended that the Forest Service ignor-ed local citizens' concerns and the landmanagement proposals of the State itself.

In January 1980 federal District CourtJudge Karlton granted summary judg-ment against the Forest Service. TheCourt determined that the Forest Servicehad failed to comply with NEPA inseveral respects. The Forest Service'sdraft EIS neglected to examine the site-specific adverse environmental impactswhich would result from non-wildernessdesignation. Karlton noted that the For-est Service review of major land featuresof a roadless area was often reduced togeneralized terms such as "mountain" or"river". "One can hypothesize," observedKarlton, "how the Grand Canyon mightbe rated: 'Canyon with river, little vege-tation.'"

The Forest Service also violatedNEPA's requirement that a broad rangeof alternatives to the proposed action beconsidered. Of the eleven alternativeschosen by the Forest Service for study,ten allocated all of the areas to wildernessuse. None of the alternatives considereddesignation of more that 34% and lessthan 100% as wilderness-ignoring rough-ly two-thirds of the possible range ofoptions.

The third NEPA violation was thefailure to adequately solicit and considerpublic comment. The Forest Service'schosen alternative was not made publicuntil the final EIS was released in January1979, and differed substantially from thealternatives described in the draft EIS.The administrative position was there-fore chosen without public input. Thecourt held that the Forest Service shouldhave circulated its final proposal as asupplement to the draft EIS for publiccomment before taking final action.

The court also determined that the

Forest Service failed to respond to publiccomment on specific RARE II areas. Ithad expressly solicited such commentsin the draft environmental impact state-ment, but only responded to generalcomments about the overall RARE IIprocess in the final EIS.

The Forest Service appealed, contend-ing that the degree of detail required wasunwarranted. The Ninth Circuit Court ofAppeals, however, upheld the districtcourt's ruling in favor of the State.California v. Block, 650 F.2d 753 (9th Cir.1982).

Environmentalists' Concerns

Most conservation organizations didnot join the State in its suit against theForest Service. In fact, when Huey John-Son proposed a RARE II suit, environ-mental leaders attempted to dissuadehim. They feared that a lawsuit wouldcause the Forest Service to immediatelyinitiate nationwide RARE II legislationbased solely on Forest Service recom-mendations. Environmental leaders werenot prepared to successfully opposesuch legislation. They needed time toanalyze the Forest Service's review pro-cess, develop alternative proposals, andprovide for effective public participationwhere the Forest Service had not. With-out time to gather and evaluate infor-mation, conservation organizationswould be at a disadvantage in analyzingany proposed bill and in informing Mem-bers of Congress of the effects such a billwould have.

Jim Eaton, Executive Director of theCalifornia Wilderness Coalition, describ-

ed the concerns of the many conser-vation organizations not joining in thesuit. "There was no doubt in our mindsthat RARE II would be thrown out by thecourts. Our fear was that a sweeping,nationwide decision would panic Con-gress into overriding the court by ap-

proving the Forest Service's proposalwith little change. We felt we could getmore wilderness by trying the legislativepath before the judicial one. It was a littlelike using a nuclear bomb when conven-tional weapons would suffice. Your vic-tory might be short-lived."

Eaton remains convinced that had thelawsuit not been limited in scope to onlya

Wilderness Bill last year marked the endof battles to protect some wildernessareas and the beginning of the struggle toprotect others.

MatyScoonoveris a first yearlawstudentat King Hall who has served as an internfor the American Rivers ConservationCouncil, Sierra Club, and the CaliforniaWilderness Coalition. She has testifiedbefore Congress on California wilder-ness and riverissues, and continues workwith the Wilderness Coalition.

portion of the Forest Service's Californiarecommendations that its effects wouldnot have been so positive. "In hindsight,"Eaton concluded, "the lawsuit was amajor factor in getting a good CaliforniaWilderness Act passed. It put the pres-sure on the Forest Service and timberindustry to reach a settlement with en-vironmentalists."

Conclusion

The California Wilderness Bill wastruly a compromise with only 1.8 of themore than 6 million eligible acres pro-tected by the bill. It was the culminationof years of judicial, administrative andlegislative attempts to adequately reviewCalifornia's pristine areas. The evolutionchronicled in this article is only a smallportion of the history surrounding Cali-fornia's wildlands. The California Wilder-ness Billk celebrated by some and criti-cized by many, is a significant step topreserve California's wilderness. It is not,however, the final step. The Bureau ofLand Management and the State arereviewing many other potential wilder-ness areas, and the issue of NationalForest wilderness is far from resolved.Pristine areas not protected in this bill willbe the critical focus in forest-wide landmanagement plans due to be completedin California by December 31, 1985.Congressional approval of the California

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EnvironsEnvironmental Law SocietyKing HallUniversity of CaliforniaDavis, California 95616

Nonprofit Org.U.S. POSTAGE

PAIDDavis, CA 95616

Permit No. 3

Staff:Editor-in-ChiefMartha H. Lennihan

Assistant EditorPaul D. Thayer

ContributorsLaura H. KosloffMary ScoonoverFern ShepardMark C. Trexler

Faculty AdvisorHarrison C. Dunning

Environs, a non-partisan natural resources law news-letter, is published by the Environmental Law Societyof the University of California, Davis School of Law.

The views expressed herein are those of the authors,and do not necessarily reflect the position of theUniversity of California, Davis, the School of Law, theEnvironmental Law Society, or of any employer ororganization with which an author is affiliated.

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