INSTREAM FLOW INFORMATION PAPER: NO. 23 Biological Report 86(9) September 1986 A NEW PERSPECTIVE IN INSTITUTIONAL ANALYSIS: THE LEGAL-INSTITUTIONAL ANALYSIS MODEL (LIAM) INSTREAM FLOW AND AQUATIC SYSTEMS GROUP ,DATA LlBRAf^^ \fi-ir',d3 Hote Oceam ogvapV*'" .InslMioni JOHN^F. KOCIK Biological Report 86(9) September 1986 A NEW PERSPECTIVE IN INSTITUTIONAL ANALYSIS: THE LEGAL-INSTITUTIONAL ANALYSIS MODEL (LIAM) Instream Flow Information Paper No. 23 by Leah J. Wilds Instream Flow and Aquatic Systems Group National Ecology Center U.S. Fish and Wildlife Service Fort Collins, Colorado 80526-2899 National Ecology Center Division of Wildlife and Contaminant Research Fish and Wildlife Service U.S. Department of the Interior Washington, DC 20240 MBL/WHOI D 0301 OOHOSflb b This report should be cited as: Wilds, L. J. 1986. A new perspective in institutional analysis: the Legal Institutional Analysis Model (LIAM). Instream Flow Information Paper 23. U.S. FishWildl. Serv. Biol. Rep. 86(9). 143 pp. CONTENTS FIGURES IV ACKNOWLEDGMENTS v 1 . 1 ^ITRODUCTION 1 2. NSTREAM FLOW: AN OVERVIEW 5 2.1. The West: Appropriation 7 2.2. The East: Riparian Rights 9 2.3. The Cedar River 11 3. LIAM: THE THEORY 17 3.1. Incremental i sm 17 3.2. Decision Arena 19 3.3. Organizational Process 20 3.4. Group Psychology 22 3.5. Bureaucratic Politics 24 3.6. Power 24 3.7. Summary 25 4. THE FOUR PHASES OF LIAM 29 4.1. Phase I: Survey of Authorities 29 4.2. Phase II: Role Analysis 32 4.3. Phase III: Power Analysi s 41 4.4. Phase IV: Behavior Analysis 42 5. LIAM: THE COMPUTER MODEL 46 5.1. The Computer Programs 46 5.2. Preliminary Steps Before Running Query 47 5.3. Phase I: Query: Survey of Authorities 50 5.4. Phase II: Query: Role Analysis 51 5.5. Phase III: Query: Power Analysis 53 5.6. Looky 55 5.7. Mapum 56 5. PHASE IV: BEHAVIORAL ANALYSES AND STRATEGY DEVELOPMENT 62 6.1. Formi ng a Task Group 62 6.2. Context of the Issue 62 6.3. Coalitions 71 6.4. General Strategies 76 6.5. Defining Success 77 REFERENCES 78 APPENDICES 87 I. LIAM Subquadrant Descriptions 87 II. User's Manual for the Legal-Institutional Analysis Model 92 m FIGURES Number Page 1 The theoretical concepts used to develop the Legal- Institutional Analysis Model 27 2 The four phases involved in conducting legal-institutional analyses 30 3 The location of four organizations along the Broker- Arbitrator continuum 34 4 An LIAM Role Map 36 5 The location of two typical organizations on an LIAM role map 39 6 The sixteen subquadrants (A-P) of an LIAM role map 40 7 Flow chart of the theoretical concerns addressed in each of the four phases of LIAM 43 8 The location of a Broker-Guardian organization on an LIAM role map 54 9 The location and distribution of many typical organizations on an LIAM rol e map 58 10 An example of three-sectioned power columns provided to users of LIAM 60 11 An example of a perspective plot provided to users of LIAM ... 61 12 Likely scenario for competitive negotiations: a first cut ... 66 13 Likely scenario for competitive negotiations: a second cut .. 67 14 Likely scenario for cooperative negotiations: a first cut ... 69 15 Likely scenario for cooperative negotiations: a second cut .. 70 16 Likely scenario for integrative negotiations: a first cut ... 72 17 Likely scenario for integrative negotiations: a second cut .. 73 IV ACKNOWLEDGMENTS I am greatly indebted to Dr. Berton L. Lamb, Project Officer for this effort, for his insightful criticisms and unrelenting support as this document moved towards completion. In addition, this information paper has undergone extensive internal and external review, which has resulted in a vastly improved product. I would like to thank those individuals who took time from their busy schedules to review this product: Hanna J. Cortner, Pima County Board of Supervisors, Tucson, AZ . Dennis L. Soden, Appalachian State University, Boone, NC. Daniel McCool , Texas A&M University, College Station, TX. John Nessler, Waterways Experiment Station, U.S. Army Corps of Engineers, Vicksburg, MS. Michael Hamilton, University of Southern Maine, Portland, ME. E. R. Mancini, Atlantic Richfield Company, Los Angeles, CA. Jim Henricksen, U.S. Fish and Wildlife Service, National Ecology Center (NEC), Fort Collins, CO. James R. Hanchey, Institute for Water Resources, U.S. Army Corps of Engineers, Fort Belvoir, VA. Stephen Olson, Department of Water Resources, State of Arizona, Tucson, AZ. Zachary Smith, Ohio University, Athens, OH. Gregg Cawley, University of Montana, Missoula, MT. Rose Pfund, University of Hawaii, Honolulu, HI. J. N. Clarke, University of Arizona, Tucson, AZ. Rich Johnson, NEC. Robert Hays, NEC. Kay Lindgren, NEC. Helen Ingram, University of Arizona, Tucson, AZ, I'm also grateful to Ms. Jennifer Shoemaker, who was responsible for the graphics; Mr. Jim Zuboy, who edited the manuscript several times; and our wonderfully patient and experienced typists, Ms. Connie Spelling, Ms. Marlys Updike, Ms. Elizabeth Barstow, Ms. Dora Ibarra, and Ms. Patricia Gillis. And finally, I would like to express my thanks to my daughter, Victoria, and my friends and coworkers for providing the friendship and emotional support this writer could not have done without during the time it took to complete this report. VI 1. INTRODUCTION Media commentators have long recognized that the United States moved into the environmental decade of the 1970' s on a tide of optimism; there was a general feeling that, once initiatives were begun and programs established, over 100 years of pollution could be cleaned up quickly. Now, only 10 years later, it is clear that such a monumental task will be neither "easy" nor "cheap" (Rosenbaum 1985). A number of steps have been taken. The legacy of the seventies is a variety of Federal and State environmental laws [e.g., the National Environ- mental Policy Act (1959); the Surface Mining and Control Reclamation Act (1977); the Federal Water Pollution Control Act (1972, 1977); the Endangered Species Act (1973); the Fish and Wildlife Coordination Act (1958); the Toxic Substances Control Act (1976); the Resource Conservation and Recovery Act (1976); and the Comprehensive Environmental Response, Compensation and Liability Act (1980)]. These laws reflect a desire not only to clean up and manage America's natural resources, but also to develop protective programs that would ensure future maintenance of those resources and allow industry and development to proceed at a pace and in a manner compatible with — or at least not detrimental to — natural ecological systems. Implementation of these programs, however, has been extremely difficult, with costs high and frustration the inevitable result. Moreover, technological advances have not been able to meet the challenges presented in the implementation process. Jurisdictional confusion and litigation have frequently been the result. The trend towards litigation has stemmed in large part from the need to interpret the various laws; resolve agency, organizational, and individual disputes; and clarify the roles of economics and science in such complex areas as cost- benefit analysis and risk assessment (Anderson 1973; Brown 1980; Lester and Bowman 1983). The conflicts which arise in the course of resolving these disputes are part of an overtly political struggle. The struggle is over who gets what societal benefits and services (Lasswell 1936) as these "values" are distributed in projects, permits, licenses, and programs. Such policy determinations are made, implemented, assessed, and adjusted in a complicated environment of technical analysis and political trade-offs. Indeed: No domain of public authority ... has expanded more rapidly, nor has any embraced more ambitious goals, than has environmental regulation in the last decade .... This expansion ... while most visible at the Federal level, has ... permeated lower levels of government until ecological issues are [now] routine agenda items for [all levels of] government. [In essence], we are depending primarily upon the Nation's governments, and the political structures in which they are embedded, to assume leadership in environmental management and responsibility for future environmental planning (Rosenbaum 1985:25-26). The above paragraph suggests a high degree of complexity not only in major policy decisions, but also in small choices made at all levels of govern- ment. Governments, whether Federal, State, or local, are involved in defining, implementing, and adjusting policy; the bureaucratic activity that results is confusing to observers and participants alike. Focusing on the decision-making process on a project-by-project basis does little to relieve this complexity. This is more true today, in the 1980' s, than ever, and it is as true regarding instream flow protection as any other resource issue. In the instream flow arena, of course, conflict develops over what users get the water that is available — and for what purposes. An "instream flow" can be defined as that amount of water that is left flowing in a stream or river system. "Instream values" include the following: navigation, water quality, recreation, fish and terrestrial wildlife protection, and aesthetics. Instream flow decisionmaking is characterized by the diversity of organizations that hope to benefit from the development and implementation of policy. Many organizations, both public and private, attempt to influence the outcome of instream flow program implementation efforts in such a way that their respective concerns are addressed; these concerns may be economic, technical, environmental, political, or social. These concerns are frequently misunderstood, even by those directly involved. For example, many applied scientists, involved in collecting and analyzing data, ignore the context in which their recommendations will be considered. Project builders focus on the purely economic costs and benefits involved. Politicians frequently are not instructed by the confusing technical and scientific elements of proposals. And each group has a hard time communicating with the other, while all participate in determining the degree to which a particular river system receives protection. Three facts seem to stand out amid the confusion that results. First, science or technology alone cannot be depended on to develop all of the necessary solutions. Many di scipl ines need to become involved in a cooperative effort to resolve the problems associated with instream flow protection. Second, all environmental policy administration has both technical and political aspects associated with it (Ingram 1984; Lamb 1984a, b). Indeed, some observers suggest that policy implementation is more political than technological (Mann 1982a; Yaffe 1982). Environmental policy implementation occurs in an environment in which "...the medium of exchange. .. i s power and the mode of interaction is negotiation" (Yaffe 1982:7). In spite of all evidence to the contrary, many applied scientists and technicians still believe policy implementation is a fairly simple technical matter (Mann 1982a; Lamb 1984a, b). They frequently do not recognize the political aspects of conflicts in which they become involved. One must understand the political environment in which programs are created and implemented. Technical issues, at this level, are usually less complex than the political and institutional problems involved. Implementation is ultimately a product of interorganizational negotiation (Mann 1982a; Yaffe 1982; Lamb 1984a). This being the case, it is important to develop an adequate understanding of the process of program development and implementation, as well as the organizations that participate in both. le Third, a number of recent research efforts have brought attention to th crucial nature of preassessment techniques for resolving resource problems One of these research efforts has focused directly on the need for institu tional analysis as a first step towards defining and understanding a problem. Institutional analysis is a general term that refers to attempts to understand and explain "those legal, political, and administrative processes and structures" through which public policy decisions are made (Ingram et al . 1982:323; Cortner and Marsh 1986:1-2). This includes rigorous definition of the problem itself and the context in which it will be resolved. Since the determination of water resource decisions and their subsequent implementation involves the active participation of a wide range of organizations, profes- sions, and interests (Bovee 1982), it is important to understand the context in which these groups work, and to understand and plan for the ways in which interactions will occur. Thus, the more rigorous the analysis, the more likely that potential barriers and constraints to instream flow program imple- mentation will be identified. Institutional analysis is most useful, however, when it takes the analyst beyond traditional surveys of the relevant laws and institutions to the assessment of alternative solutions and the development of concrete strategies to achieve desirable results (Daneke and Priscoli 1979; Ingram et al . 1984). Some sort of analytical framework is needed then, and the Legal Institutional Analysis Model (LIAM) has been developed to meet this need. LIAM is a computerized analytical procedure designed to accomplish four goals. First, it provides a systematic method to diagnose a conflict. The analyst is able, by using LIAM, to answer such questions as: What type of conflict is this likely to be? Will it be an ideological dispute — or a procedural one? Who is likely to dominate the negotiation--and what type of negotiation styles are likely to emerge? In whose favor is the outcome likely to fall? Second, the model allows an analyst to plan for participation in a negotiation. Here, one could answer such questions as: Where can influence best be exerted? What are the concerns of the various sides to this conflict? What are the likely areas of agreement? Where are alliances likely to form? What types of power does each organization have at its disposal — and to what degree? What communication and negotiation strategies will be most suitable in thi s context? Third, the model predicts organizational behavior. Here the analyst can answer such questions as: What is organization "x" likely to do? What is the mix and distribution of organizational types? How likely is compromise among them? Is litigation a possibility? How can compromise be facilitated? To what types of information will organization "x" be most receptive? Given a change in the environment, what will happen to organization "x"? How are the other organizations likely to respond? Finally, LIAM can be used as a conflict resolution tool. This can be achieved by getting all of the parties to use the procedure to develop a better understanding of the values and needs of other parties; to identify commonalities among them; and to overcome misperceptions. LIAM, in this latter sense, can lead to improved understanding and communication, and can help to move the conflict from a competitive to a noncompetitive environment. LIAM, in short, is presented as part of the answer to increased understanding of the organizations involved in instream flow decisionmaking, and of the nature of the decisionmaking process per se. An organization that develops such an understanding will be in a better position to represent its own interests and values in the process. The following chapter examines instream flow decisions as they fit into the overall water policy context, and an example is presented of the type of problems usually encountered in instream flow issues. This chapter also surveys the literature on institutional analysis, focusing on instream flow protection. Chapter 3 introduces LIAM and its theoretical underpinnings. Chapter 4 outlines the four phases involved in conducting legal-institutional analyses. In Chapter 5, the computerized version of the model is described, along with specific directions for conducting an LIAM analysis. The final chapter concludes with a discussion of the ways in which LIAM can be used to develop strategies for instream flow protection. I 2. INSTREAM FLOW: AN OVERVIEW Although water is clearly one of this country's most abundant and versatile National resources, the "adequacy of our water resources has emerged as [one of] the nation's principal resource concerns in the 1980' s" (Frederick 1982:216). Every geographic region in the United States faces serious water problems, which fall roughly into two major categories: either there is too much demand for too little water, or the quality is low. Instream flow needs are related to both. Historically, the value of maintaining flow in streams for instream uses has been ignored in favor of development uses. This is especially true in the West, where diversionary and beneficial use is often a prerequisite for obtain- ing legal rights to the water. In the last decade, however, the environmental movement and other factors led to the creation of a new kind of water use: the use of a free-flowing stream for such purposes as recreation, water quality maintenance, aesthetics, and the preservation of aquatic and terrestrial wildlife (Doerksen and Lamb 1974; Tarlock 1978; Weatherford 1982). The debate over instream flows centers on the crucial question: How much water, in what condition, and for what uses, should be left in a particular river or stream? Thus, instream flow allocation is integrally tied to the issues of quantity and quality, as well as the legal and institutional frame- works for managing and regulating each. As the demand for energy, irrigation, and domestic and industrial consumption has increased, more and more streams have been impounded or depleted to provide water for these interests. These long-standing water uses have come into direct conflict with the newly recognized instream values (Doerksen and Lamb 1979; Lamb and Meshorer 1983). Competition over what is viewed as an increasingly scarce resource, especially in the West, is often fierce (Frederick 1982; Weatherford 1982). Instream users not only have to compete among themselves for water to cover a diverse set of activities (including fish and terrestrial wildlife protection, recreation, flood control, hydroelectric power generation, navigation and transportation purposes, and waste treatment and assimilation), but with offstream users as well. Off stream users also compete with instream users and each other to advance a variety of interests, many of which are incompatible. These include water for agriculture and irrigation, livestock, manufacturing, industry, mining, steam-generated electricity, and a host of commercial and domestic activities (Frederick 1982). Instream flow questions have no single answer that is suitable in all conflicts. It is not simply a matter of instream flow versus diversionary uses. Determination of instream flow needs is associated with a number of water issues, including (but certainly not limited to): Section 404 dredge and fin permits; hydroelectric licenses; operating schedules for Federal projects, such as dams and diversionary works; waste assimilation capabilities of rivers and streams; environmental impact assessments; mitigation efforts; navigation facilities; recreation; land management planning; State programs for setting initial instream flow standards; the design and implementation of general State instream flow programs; initiating instream flow legislation; and in denials of water rights based on instream flow studies. Even where instream uses are designated as beneficial, and legal oppor- tunities provided for their protection, the institutional processes involved often present major obstacles to achieve adequate protection for instream values. The problem seems to be more than just a question of which is the more "beneficial" use. While it is true that instream uses are easier to protect if they are legitimized by State law, when this is not the case, other opportunities exist for their protection. Such opportunities are provided in Federal project construction and operation; Federal water rights; endangered species protection; wild and scenic rivers management; Federal Clean Water Act planning; the Fish and Wildlife Coordination Act; and various State laws and protective programs. Although one of the most basic elements of instream flow determinations concerns the allocation of water among competing users, and hence "water rights," the issue is much more complex than this implies. Solutions are far from simple, no matter what system of water allocation is at work. Conflict initially arises because a multitude of public agencies and private organiza- tions strive to achieve a widely diverse set of goals (Doerksen and Lamb 1974; Lamb and Meshorer 1983). Each instream flow problem tends to be defined, then, by a number of factors, including: the various State and Federal laws that are called into play by the nature of the problem; the interactions of various groups attempting to achieve their own objectives; the particular set of technological problems that need to be resolved; the type of field studies and analyses to be conducted; and the political and institutional circumstances involved. Allocation of water supplies, both underground and surface, is achieved through a complex arrangement of statutes, regulations, and permit systems carried out by numerous organizations created at all three governmental levels. To date, there has been little effort in developing and coordinating a single regulatory system to control water distribution and use. At the National level, the mechanisms for control are fragmented not only across the three branches (executive, legislative, and judicial), but scattered within each branch as well. For example, in Congress alone, 41 House committees and sub- committees, along with 31 in the Senate, all have some authority over National water policy planning. Furthermore, four different Federal agencies, each located in different departments, have major responsibilities for water manage- ment (Rosenbaum 1985). (These include the Bureau of Reclamation (Interior); the Soil Conservation Service (Agriculture); the Army Corps of Engineers (Defense); and the Tennessee Valley Authority.) Although such dispersion of responsibility and authority obscures the interrelatedness of the various policy areas and obstructs coordinated planning, new statutes are written and existing statutes implemented in such a way that fragmentation and inconsis- tency seem inevitable. The ambiguity that results is seen by some as permitting a high degree of much-needed administrative discretion and flexi- bility (White 1971). Ambiguity may even present opportunities, if correctly handled; however, many individuals directly involved in the implementation of different State instream flow programs are frequently frustrated by the apparent lack of consistency. The States have developed their own mechanisms for distribution, which tend to reflect the wide variation among the States in water law, supply, demand, public attitudes, and historical precedent (Mann 1982b). In the West, the "appropriation doctrine" was originally adopted, while in the Eastern States the "riparian doctrine" has dominated. Although modifications of both doctrines have appeared in practice, these two doctrines still form the basic foundations of Eastern and Western water law as we see them today (Gould 1977; Meyers and Tarlock 1980; Davis 1983). A brief review of these doctrines then, is necessary to fully appreciate the current state of affairs in instream flow protection. 2.1. THE WEST: APPROPRIATION The first major use to which water was put in the West was in mining, followed soon after by irrigation. Both require the removal of water from the streambed, with the return flow often far less than the amount diverted. Since water is scarce in the arid West, not enough was available to meet the demands of all those desiring to use it. These basic facts gave rise to the three fundamental principles of the appropriation doctrine: the priority rule, the diversionary requirement, and the beneficial use requirement (Dewsnup and Jensen 1977b; Tarlock 1978; Mann 1982b). The priority rule states that the first appropriator on a stream has the prior right to use the water: "first in time, first in right" (Mann 1982b:24). Thus, appropriati ve users are classified according to the dates on which each began to use the water. In times of shortages, the most junior (i.e., latest appropriation date) users may be required to cease operations, while the most senior users continue to have the right to use the water. The diversionary requirement that water physically be removed from the stream results from the fact that the first major and competitive water needs were associated with diversionary activities. Diversions were also viewed as a practical means for determining priority, since diversionary structures served as physical evidence of the priority of the water right. The diversion- ary requirement presented a major obstacle in early attempts to keep the water instream (Dewsnup and Jensen 1977b; Tarlock 1978). Scarcity of water supplies also contributed to the development of the third principle, that appropriated water be put to a "beneficial use." The amount of water to which a user is entitled is no more than the amount that can be put to a beneficial use. Failure to do so results in loss of the appropriative right to the water by forfeiture or abandonment. "Beneficial" uses, of course, were traditionally economic and developmental, as the mining and irrigation customs became incorporated into common and statutory law (Gould 1977; Tarlock 1978; Meyers and Tarlock 1980; Mann 1982b). The appropriation doctrine in general reflects the struggle in the American West to protect the "certainty" or dependability of water rights and to "fix" the relative positions of users. The ultimate result of these forces has been the development of a "consumptive ideology," which perpetuated the notions that: (1) water not used is wasted or lost; (2) only economic, diver- sionary uses are beneficial; and (3) individuals have the right, if all other requirements are met, to use the alloted amount of water no matter what condi- tions prevail (Lamb 1980b; Mann 1982b). Currently, the appropriation doctrine requires meeting five standards: (1) intent to appropriate; (2) notice of such intent; (3) adherence to State laws; (4) diversion or physical control of the water; and (5) application to a beneficial use (Gould 1977; Huffman 1983). The latter two requirements have long stood as historical road blocks to the preservation of instream flows. The law has moved beyond the necessity of capture as the basis of a Western water right, however, and now capture tends to be justified only when it serves some clear resource allocation function (Tarlock 1978). Indeed, most contemporary Western water law experts recognize that the actual diversion requirement serves no real function today that cannot be otherwise achieved through statutory procedures (such as permit systems) (Tarlock 1978). Western water law adopted the view that "inefficient" or cost-ineffective water use could only be controlled or eliminated through the beneficial use requirement. Since the economic benefits of instream values were difficult to determine and document, instream uses were traditionally regarded as grossly inefficient and thus denied in favor of other claimants, such as energy devel- opers. In light of current widespread acceptance of instream values, however, instream uses of water have increasingly come to be recognized in State statutory schemes as "beneficial" (Tarlock 1978; Meyers and Tarlock 1980). Since the early seventies. Western States have made rapid, creative adjustments in water rights systems to accommodate changing needs (Mann 1982b). While there continue to be conflicts, four major types of instream flow programs have emerged among the Western States (Dewsnup and Jensen 1977b). First, several Western States have adopted instream flow reservation systems, wherein a basic flow level is set aside below which no new water rights can be granted. These reservations have the date of enactment as the priority date. Water rights senior in time to the reservation are not affected. Persons who desire to obtain a water right after the date of reservation may use water only when the reserved flow is satisfied. Additionally, all prior users get to use the water before the reservation is satisfied. Enforcement provisions vary among the States using this technique, but the basic idea is the same: some percentage of a stream's flow is reserved from all subsequent out-of- stream use (Dewsnup and Jensen 1977b; Lamb and Meshorer 1983). Second, some Western States have developed, by statute, specific stream flow appropriation systems. Instead of reserving water from future use as is the case with reservations, the appropriation system grants an appropriati ve water right for a given instream use. The States that employ this mechanism provide that only a designated State agency may hold these water rights; there have been, however, a few instances of individuals holding instream use water rights (Tarlock 1978; Lamb and Meshorer 1983). Third, many Western States allow for an administrative agency to "condition" new water rights to protect flows on behalf of instream values or the public interest. In most of these States, when an application is made for a water right, the application is reviewed by concerned agencies. One consideration is the maintenance of instream uses. To ensure proper flow regimes, the conditions are often attached to a new permit for a water right so that the water right holder may not use the water if (when) it drops below a specified flow (Tarlock 1977; Lamb and Meshorer 1983). Fourth, a number of States have instituted State-level protected rivers programs, in which rivers are classified as wild and/or scenic. These designa- tions typically specify that future withdrawals of water are either limited or prohibited altogether (Tarlock 1978; Lamb and Meshorer 1983). Various of other innovative methods for instream flow protection have been devised and successfully implemented in the West; at the Federal level, the opportunity exists for States to participate in the National Wild and Scenic Rivers program (P.L. 94.486). Some of these include: conditions on transfers and exchanges of water rights, or even the prohibition of both; permits for a designated period of time only, not in perpetuity, which revert back to the State at the end of that period; and the acquisition and realloca- tion of existing water rights through purchase or condemnation. In addition, a number of strategies have been developed in synchronization with the imple- mentation of State and Federal water quality programs (Dewsnup and Jensen 1977a); the State police powers to protect the health, safety and welfare of its citizens (Huffman 1983); and the gradual expansion of the definition of navigability (Dewsnup and Jensen 1977a; Tarlock 1978). 2.2 THE EAST: RIPARIAN RIGHTS Riparian rights are also rights associated with the use of the water — rather than "ownership" of the water in question — but no diversion or actual use of the water is required. This doctrine was adopted from 19th century practices in England and seemed suitable for the eastern part of the United States, given the abundant water supplies there. Under the riparian doctrine, water rights are obtained by contiguous ownership of the land touching the water (Cunningham 1973; Davis 1982). Each riparian landowner is entitled equally to the water. Initially, this meant riparian users were absolutely entitled to have the water flow along their property "undiminished in quantity or quality" (Cunningham 1973:181; Davis 1982:47-80; Lamb and Meshorer 1983: 1-17), even if the water was not being used. This rule seemed quite appropriate, since in the humid East, diversionary irrigation was unnecessary and mining was not a major industry. Outside of domestic uses, moreover, the primary need for water during the 19th century was to power mill wheels. With the natural flow requirement mill owners were assured of enough continuous flow to satisfy this need (Davis 1982). Only a few Eastern States, however, currently adhere to this rule. In other areas, the rule has been modified to provide that "reasonable" uses be made of the water in a stream system, a principle that seeks to promote the fullest riparian use of the water. The reasonableness of a use is determined by the character of the stream, the present conditions, and the location of users relative to each other. Thus, it is a comparative sort of reasonableness and tends to be determined by the courts on a case-by-case basis (Davis 1982). The courts have thus come to play an instrumental role in protecting instream values, although it has been a long and cumulative process. Four major court-created protection strategies have emerged. First, there has been a trend towards recognition of private recreational uses as "reasonable" under the riparian doctrine. Second, the courts have moved towards protecting the waste assimilation capacities of streams under a variety of State and Federal water quality control programs. Third, the courts have been useful in protecting some element of natural flows on behalf of both mill owners and metropolitan water supplies. Fourth, the courts have begun to recognize the public interest right to protect streamflows on behalf of recreation, aesthetics, and boating (Davis 1982). Eastern States have also been successful in initiating programs of their own, especially in the last decade. In some States, for example, flow standards have been set that limit the ability of riparian users to take water in times of short supply. Streams and rivers have also been assigned, either by State statute or administrative ruling, a "protected" status, as has been the case under the appropriation doctrine in the West. A number of Eastern States have begun to implement permit systems or to condition the operation of existing and future dams so as not to affect minimum flow standards set for instream values. Other States have incorporated priority systems, either in State laws or within an administrative permit system. In this latter instance, uses are categorized according to types of use (e.g., domestic, industrial, water supply) and ranked in priority of use rights. In times of shortages, the lower categories are required to reduce the amount of water being used, or to stop use altogether. Increasingly, instream uses are being included in these categorization schemes (Aiken 1983; Ehrlich 1983; Ertl 1985). In both the West and the East, then, opportunities do exist for protecting instream flows; however, the degree of success encountered varies from State to State and program to program. This is because, in practice, instream flow protection efforts frequently involve controversy and lead to conflicts among competing values and goals. The degree to which these conflicts are success- fully resolved shapes the nature of the outcome. The key to successful protection of instream uses is to negotiate permits and standards that give adequate consideration to both viable economic interests in water resources and instream values. This is a process that involves bargaining — and compromise — among the interested parties to a conflict (Lamb 1980b). Instream flow resource problems have many nontechnical aspects that are not sufficiently understood. Indeed, the political, legal, and institutional facets of instream flow issues are often more complex than the technical ones. It is in this regard that a dynamic, flexible tool for evaluating these elements can be highly useful. An example may help illustrate this point. 10 2.3 THE CEDAR RIVER In 1972, steelhead anglers caught 278,927 steelhead in the State of Washington rivers; 1,224 of these seagoing trout were caught in the Cedar River. This does not seem like a lot of fish, however, to these fish add the 5,000 to 15,000 Chinook, 30,000 to 150,000 coho, and 50,000 to 200,000 sockeye salmon that are produced in the Lake Washington system, of which the Cedar River is a part. All of these fish depend on the Cedar River either for spawning waters or for fresh water inflow to the lake during rearing. It is estimated that the fishery in the Lake Washington-Cedar River system, with no artificial propagation, could easily produce in excess of two million fish annually (Beckett and Lamb 1975). The importance of the fishery can be appreciated when one considers the following facts. Lake Washington is surrounded by the City of Seattle and its suburbs. Accessible portions of the Cedar River are within a few minutes' drive of metropolitan Seattle. The lake is commercially fished and the Cedar River receives heavy recreational use. In addition to supporting these values, the waters of the Cedar River provide an important water supply; the City of Seattle draws 70 percent of its water from the Cedar River. The city owns 81 percent of the Cedar River watershed; pipes from the point of diversion travel only 30 miles to the city limits. In the State of Washington, the Department of Ecology (DOE) is authorized by statute to establish minimum or base flows by administrative procedure after public hearing. In such a situation, the Department of Ecology becomes the arbitrator among the agencies representing various uses of the stream. Under Chapter 90.22 of the Revised Code of Washington, the State Fisheries or Game Department, among others, can initiate administrative action by requesting certain minimum flows for a stream system (Beckett and Lamb 1976). The procedure to establish administrative policy regarding the Cedar River was initiated by the State Department of Fisheries on August 5, 1959. The department requested that the Department of Ecology set minimum flows to protect fisheries resources. The Department of Fisheries recommended certain minimum flows in a chronological regime — that is, minimum flow requirements were recommended for different conditions and times of the year — and indicated that the Department of Game and the Water Pollution Control Commission (now part of the Department of Ecology) concurred in these recommendations. Between August 5, 1959, and February 5, 1970, both the Department of Fisheries and the Department of Game revised their requests on the basis of further analysis. At a hearing on May 22, 1970, the Department of Game requested an additional modification of its recommendation. Several agency representatives testified at the hearing, including the Department of Fish- eries, the Department of Game, the Department of Water Resources, the City of Seattle, the Municipality of Metropolitan Seattle (METRO), the Puget Sound Gillnet Association, and the Puget Sound Governmental Conference (now known as the Puget Sound Council of Governments). Additional statements were received from the U.S. Fish and Wildlife Service and the Corps of Engineers. 11 Several salient facts emerged. First, the Department of Fisheries and the Department of Game had submitted flow recommendations that varied only marginally. Second, the Department of Water Resources recommendation was less specific but generally paralleled those of the other State departments. Third, the City of Seattle recommended a substantially lower flow regime. The city's proposals were consistently about a third lower than those of the Department of Fisheries, e.g., from October 11 to May 1, Fisheries requested 435 cubic feet per second, while the city recommended 290 cubic feet per second from November 1 to May 1. The administrative regulation subsequently promulgated by the Department of Ecology followed rather closely the Department of Fisheries' recommendation. The city later argued that 435 cubic feet per second exceeded the natural flow of the Cedar River for that portion of the year. Further, the city claimed that even though it was willing to provide some sort of flow, the authorized flow regime exceeded optimum fish needs. The city commissioned a series of studies, the results of which tended to confirm its position. In addition, the city had always maintained that it had a perfected water right and that the State should be required to purchase storage in the city reservoir to maintain desired flows. This water right claim was based on five facts: (1) in the 1890' s, the city installed and maintained a measuring weir on the river above Cedar Falls; (2) in 1895, a city ordinance proposed an election to authorize the city to proceed with development of the river as a water supply; (3) in 1902, the first water was delivered to the city; (4) in 1914, a masonry dam was constructed on the river; and (5) in 1916, over 47 percent of the entire watershed above Landsburg Dam was purchased by the city. Undoubtedly, the city does have a water right, but by 1959 it had not filed with the State for the right, which it was required to do by State law. This left the extent of the city's right in question (Beckett and Lamb 1976). The call for the hearing in 1970 caught the City of Seattle by surprise. The city first heard about the hearing and the proposed flow regime through a public announcement. There was no advance notification or negotiation. Furthermore, the Department of Fisheries seems to have viewed this as a test of the strength of the law and the willingness of the Department of Ecology to carry through once the process was initiated. Two representatives of the Department of Fisheries indicated that they picked the Cedar River case because it posed a difficult problem. If this problem could be resolved in a manner beneficial to their objectives, it seemed to them that other such scenarios would eventually follow. The flow regulation ultimately recommended by the Department of Fisheries was promulgated as Washington Administrative Code Chapter 17330. According to several respondents, the standards of the regulation have not been met consistently. The Department of Ecology has been unwilling to strictly enforce the ruling. Since establishment of the flow regime, only one critically short water year has occurred. During that period, representatives of the concerned agencies met regularly to review the data provided by the City of Seattle and to negotiate the actual flow level to be maintained. Subsequently, such a renegotiation process became the standard practice, even in normal water years, since the interested parties got together during each summer to negoti- ate their di fferences. At these "low flow" meetings, information on historical 12 flows in the river was provided by the City of Seattle. Even though other agencies had data on stream flow, the city maintained the most comprehensive record of historic flows and current conditions. It was thus the city to whom agencies had to turn for reliable information on which to base their individual negotiating positions. The flow regime established by the Department of Ecology has not been maintained for a number of reasons. Primarily, the city adjusted outflow from its impoundments on the basis of natural inflow, water quality, and consumptive demands on the water. The city was unwilling to release more than the natural inflow and reluctant to retain turbid water. These conditions led to confrontation at the semiregular low-flow-period meetings. Representatives from both the city and the Department of Fisheries indicated that the Department of Fisheries is frustrated by the inability of the city to meet the flow regime and the unwillingness of the Department of Ecology to enforce compliance. The city's position is that the Departments of Ecology and Fisheries could purchase water to meet their flow needs. The two departments, on the other hand, insist that the city must provide the flows. There appears to be no practical way to reconcile these demands. The results of these negotiations are that the city usually releases water in a pattern that is generally parallel to, but less than, the flows specified in the DOE flow standards. At the bargaining sessions, the problem tends to be dealt with by continually settling for a flow somewhere between the city's offer and the legal requirement (Beckett and Lamb 1976). It would seem that passing a State law designating a single State agency to establish flow standards may not always provide the solution necessary for instream flow protection, especially if that agency is subject to political or other pressures. Even though the agency may initially set flows, confrontation frequently continues between interested organizations, as the parties negotiate on the specific releases. In the present case, the parties have formally kept the controversy open. The city, for example, still threatens a lawsuit to establish its rights and commissions studies to refute the findings of the State departments. The Department of Ecology was placed in a difficult position from the outset. On the one hand, it was charged with establishing and enforcing flow regimes but, on the other hand, its only attempt to do so has led to continued controversy. The Department of Fisheries has requested that flow regimes be established on 14 other streams under RCW 90.22, but the Department of Ecology has failed to act on a single one of these requests. It was only much later, under a different statute, that the Department of Ecology sought to set flows on other streams. In this case study, two agencies, the City of Seattle and the State Department of Ecology, seem to have the most potential influence. Seattle owns the impoundments that control the water and, more importantly, owns a majority of the watershed. Seattle could demonstrate the economic benefits to be derived from continuation of past practice and it has staff and research support adequate to support its claims. The Department of Ecology, on the other hand, has control of issuance of water rights in Washington and the statutory responsibility for establishing flow regimes. Neither has been able to force the other to accept a flow policy, yet they must reach agreement on a 13 flow program. The Department of Fisheries has little money and only indirect authority. For leverage it must rely on the general public interest in protecting the environment and the State's fisheries. It is, however, able to use the expertise of its fishery biologists to good advantage. The department can specify the minimum needs for aquatic life and support its recommendations with extensive field data. The city counters this advantage, however, by hiring its own field researchers. Two different sets of recommendations result, each supported by biological and other relevant data. Thus, the struggle over policy is carried on through the bargaining process. The point here is that the ultimate flow regimes achieved are not those promulgated by the Department of Ecology. Each agency recommends a flow pattern for the period in question — the low flow period each year — based on its individual perceptions of instream needs. The city uses an amended version of its original estimates, adjusted on the basis of the precipitation conditions peculiar to the period in question. The State departments use the Department of Ecology standards, adjusted on the basis of local conditions. The result is a negotiated settlement for the week, month, or season in question. Commentary Although the Cedar River case is but one example, it is typical in many respects. A number of observations can be drawn from Cedar River that apply to other types of instream flow conflicts. Generally, the outer boundaries of a conflict such as this are set by statute. In some cases, several potentially conflicting statutes are involved. Here, the State legislature passed a law setting the stage for agencies to apply for designation of minimum flows to protect an instream use of the water. The State Department of Fisheries then chose to initiate the process on behalf of the Cedar River fishery resource. Other State agencies supported this move, and indeed it seems this particular case was viewed by the Depart- ment of Fisheries and others as not only a test of the strength of the law, but one that, if successful, would set a valuable precedent for similar designations on other Washington streams and rivers. Furthermore, the hydro- logic data were available regarding historical flows. It seemed the Department of Fisheries simply needed to initiate the process, backing up its recommenda- tion with technical information and field studies on the available habitat and water requirements for maintaining the fishery. It seemed also that all that was needed beyond this was to persuade the Department of Ecology to accept the recommendations, in which two other State agencies concurred, and promulgate them according to the specifications of the law. On the surface, success seemed clear — and the Department of Ecology did "promulgate" an administrative rule setting the requested flow standards. Other organizations, of course, were allowed to give testimony at the hearing and to submit counter-recommendations, which the City of Seattle did not hesitate to do. Given its interest in protecting the consumptive water rights of the city, it was not surprising that the city's recommendation was substan- tially lower than that proposed by the Department of Fisheries. What resulted was a struggle between organizations with apparently conflicting interests, in U which a choice between competing in- and out-of-stream values needed to be made. The Department of Ecology was caught in the middle. This happens frequently in water use conflicts (Lord 1984). Nonetheless, an official standard was set, based on the Department of Fisheries' final recommendation. Many, if not all, of these facts would have been revealed in a traditional assessment of the conflict by any of the organizations involved. This is because traditional assessments of instream flow issues tend to focus upon surveys of: (1) the statutory environment in which use decisions are to be made, (2) the policies that have developed within -that context, (3) the principal actors, and (4) the institutional framework involved. Typical questions addressed include: What statutes apply? Which organizations have what degree and type of authority to participate? Who makes the final decision — and on what basis? What policies have been developed? What organi- zational structure is in place, if any, for implementation, monitoring, and enforcement? What sanctions apply? The traditional approach has frequently been used to examine water issues, either before or after the fact, and is a crucial first step toward understanding the boundaries within which those seeking to protect instream flows must operate. Many traditional analyses have been undertaken because of the obvious need to document the existing legal and institutional arrangements within a given State or region of the country. Case studies have also been conducted that attempt to assess the degree to which laws have been effective. These case studies tend to be of a critical nature and more often than not suggest ways in which improvements can be made. In a case like the Cedar River, a formal analysis of this type would have been useful in discovering and explicitly recognizing the basic legal facts and organizations involved. Such analyses are frequently recommended (Minton et al. 1980; Ingram et al . 1984; Cortner and Marsh 1985). Traditional institutional analysis, however, would not have predicted the end result, non- compliance and a never-ending series of negotiations. Nor would it have moved the analyst towards developing strategies useful in avoiding such a scenario. The Cedar River case demonstrates the type of problems that can arise when a single State agency, without adequately consulting the other impacted organizations (in this case, the City of Seattle), attempts to establish and enforce flows through the promulgation of regulations. Each organization typically pursues its own interest, without consideration of the other interests involved. The ultimate decision reflects either the mutual accommo- dation of competing positions or the inability, as in this example, of the parties to reach a satisfactory agreement. One of the tests of a successful agreement is the degree of compliance that follows. A high degree of compli- ance is much more likely to occur when all parties are at least partially satisfied with the agreement (Lee 1982; Wilds 1985). Traditional assessments, then, tend to reveal only the tip of the iceberg (Ingram et al . 1984). Other questions might have been considered prior to initiating the administrative process for setting a flow regime for the river. It would have been helpful, for example, for the Department of Fisheries to generate information about the ways in which the other organizations, especially the Department of Ecology and the City of Seattle, had interacted 15 in the past. How had they behaved in similar situations? What powers did each have, aside from those legal ones spe^. -Tied in the statute? What were some of the likely outcomes? The answers to these quer .ions may well have led the Department of Fisheries to choose a different str tegy than it did. Had the interaction been scoped and defined differently, the Department of Fisheries could have developed tactics to cope with a number of possibilities. If the Department of Ecology had a history of backing down in direct conflicts with the City of Seattle, perhaps a better move would have been to begin communicating with the interested parties well before the public hearing. As it was, the hearing came as a surprise to the City of Seattle.. From that point forward, it seemed the City was out to defend itself vigorously from what it viewed as an unprecedented attack on its water rights. And what about the original objective of the Department of Fisheries, to "test the strength of the law" (Beckett and Lamb 1976)? It seems that this objective was not wholly compatible with that agency's ultimate goal — long-term protection of the fishery resources in the Cedar River system. Had the Depart- ment of Fisheries defined the issue in less threatening terms (rather than depicting it from the outset as the first of a long series of struggles with consumptive users such as the City of Seattle), perhaps communication could have been enhanced (Wilds and Lamb 1985). Inadequate preparation prior to participating in resource conflicts (such as evidenced in this case study) has become a major obstacle to those working on behalf of instream flow values today (White et al . 1980; Ingram et al . 1984). Indeed, in many cases, no attempt is made at all to examine and define the dynamics of a resource problem prior to becoming involved in its resolu- tion, in spite of an increased emphasis in the literature on the importance of such a task (Ingram et al . 1984). Recent trends in resource policy literature suggest a number of ways in which preparation for and participation in resource conflicts can be improved. Some of these trends have included calls for more directly applicable policy research (Schlesinger 1968; Rothman 1980; Cortner and Marsh 1986); more politically astute actors on all fronts (Behn 1981; Alston 1983); increased understanding and communication among the professions and disciplines involved in instream flow and other resource conflicts (Alston 1983; Callaham 1984; Haimes 1984); analyses that go beyond an examination of the economic factors involved (Daneke and Priscoli 1979) and that recognize the political nature of most policy issues (Schlesinger 1958; Hipel, Ragade, and Uny 1976; Ingram et al . 1984); and improved methods for analyzing a problem, which go beyond the traditional focus on formal laws and institutional arrangements (Ingram et al . 1984). There is a general lack of guiding theory — ideas that apply no matter what the instream flow issue at hand — in spite of the increased emphasis on the need for specific guidelines. Although commonalties do exist, each instream flow conflict is, because of the differences in participants and type of decision process involved, somewhat unique. What is needed is a systematic method that allows the user to discover the nature of a particular problem; to understand the different perspectives of the organizations involved; to deter- mine the power relationships involved; to predict probable outcomes; and to develop strategies based on those discoveries. The purpose of this paper is to present such a tool. The following chapter discusses the theoretical foundation upon which this tool is built. 16 LIAM: THE THEORY In this chapter, the theoretical underpinnings of LIAM are examined. These theories represent a long-term attempt by social scientists to document and understand the American policy process and center around five major concepts: incremental i sm, decisionmaking arenas, organizational process, group psychology, and bureaucratic politics. 3.1 INCREMENTALISM Incremental i sm as an explanatory decisionmaking model is the result of work by Herbert Simon, Charles Lindblom, and others, which attempts to explain the fundamental nature of policymaking in America (Simon 1957a; Lindblom 1959, 1968; Braybrooke and Lindblom 1963). The incremental view holds that deci sions are made serially and are pragmatic efforts to deal with problems, based on past experience, as they arise within the broader decision context defined by statute. Policies developed under general legal guidelines are adjusted bit by bit as those involved become aware of new information, technology, or preferences, or as decisionmakers are faced with new but related dilemmas. Simon pointed out that, given the uncertainty involved in planning and policy implementation, decisionmakers tend to merely "satisfice." This term refers to attempts to reach decisions that both "satisfy" the participants involved (at least temporarily) and "suffice" to solve the problem for the present time and under the particular situational constraints (Simon 1957a). This notion was further developed by others (Lindblom 1959, 1965, 1968; Wildavsky 1974, 1975). The basic idea is that given the context of an issue, the legal and policy framework currently in place, and the limitations imposed on decisionmakers by time, resources, and information, they generally try to do the best that they can in each instance. Satisficing is contrasted to another decisionmaking model, rational-comprehensive decisionmaking, which Simon and others felt was the most appropriate method for making policy decisions. In this second model, the ideal method for making decision choices involves the following: (1) clarification of values and objectives prior to and distinct from the scientific analysis of alternative choices; (2) a means-end analysis, in which the ends are isolated and the means to achieve them are sought; (3) the best measure of a "good" policy is that it can be shown to be the most appropriate means to the chosen ends; 17 (4) all analyses are comprehensive — that is, every important factor is taken into account; and (5) theory is frequently utilized (Lindblom 1959). Although the above model may be the ideal method for making decision choices, Lindblom asserted that it is not always feasible to follow. This is t^ue for several reasons. First, rational-comprehensive decisionmaking is extremely difficult to achieve in reality because: ...it assumes intellectual capacities and sources of information that men simply do not possess, and it is even more absurd as an approach to policy when the time and money that can be allocated to [resolve] a problem is [sic] limited, as is always the case (Lindblom 1959:80). Indeed, Simon asserts that: In actual organization practice, no one attempts to find an optimal solution for the whole problem. Instead, various particular decisions ... are made by specialized units ... In making these particular decisions, [they] do not solve the whole problem, but find a "satisfactory" solution ... (Simon 1964:16). Incremental decisions are usually arrived at by setting a general objective. Then a comparison is made of the obvious and most feasible alter- natives to reach that objective. There is heavy reliance on the record of past experience rather than on theory; incremental alterations of present policy are projected into the future, to judge the possible consequences of each. The most feasible means-end combination open to the decisionmakers is ultimately chosen. Typically, goals are only partially achieved; thus, one would expect to repeat the above sequence as conditions, preferences, and information changes or improves (Lindblom 1959). Incremental approaches to policymaking are also less likely to disturb the status-quo, and thus are very conservative. Further, small adjustments to existing policy are politically easier to achieve than are sweeping changes. Instream flow decisionmaking is typically incremental in a number of ways. State laws and programs developed for the protection of instream values are themselves incremental efforts, within the wider body of water law, to resolve the conflict that exists over who uses what water, in what amounts, and for what purposes. Second, within organizations, decisions are also made incrementally, i.e., internal organizational choices regarding what policies to pursue and recommendations to make in a particular conflict are based in large part on that organization's past experience, and new decisions tend to differ only marginally from 'past policy stands. Finally, as organizations negotiate among themselves while trying to protect their respective interests, 18 the adjustments each organization has to make to accomodate the other partici- pants tend to be achieved in an incremental manner. In the Cedar River case, for example, the Washington law that allowed a State agency to apply for minimum stream flows, and then authorized the Washington Department of Ecology to promulgate an appropriate flow regime, can be seen as an incremental effort on the part of the State legislature to adjust Washington water law so that instream values could be protected. This statute, then, is incremental in the first sense. Secondly, the way in which the State Department of Fisheries developed its flow recommendations, based on past experience and field studies, on the one hand, and then adjusted that recommendation as it consulted with other agencies, on the other, can also be seen as incremental. Finally, the annual summer negotiation sessions among the parties in the Cedar River case are incremental. Each organization comes to the negotiation with its position only slightly altered from the last encounter, and each organization then adjusts its position incrementally as bargaining and compromise ensues. The way in which organizations tend to bargain and compromise in this latter sense, however, is also influenced by the general context of the instream flow issue; this relates to the second major theoretical thrust of LIAM, which is explained in the following paragraphs. 3.2 DECISION ARENA A "decision arena" can be thought of as a bounded area in which action of one type or another occurs. According to Lowi (1972), most policy decisions are typically made in one of four major arenas: (1) distributive, (2) regula- tory, (3) redistributive, or (4) constituent. The first two, distributive and regulatory, are the primary arenas in which instream flow decisions are made. This is because the other two policy areas identified by Lowi have only an indirect bearing on instream flows. Redistributive policies concern such issues as taxation, and the Federal Reserve's credit controls, for example, while constituent policies are the result of direct actions by groups in society to shape the nature of politics itself, as in the case of reappor- tionment or the creation of a new government agency. Distributive policies divide benefits and services throughout society and have tended to be in the form of such things as subsidies and construction grants, project authorizations, and sales of Federal lands. In this arena, the Government acts as a policy "broker," and groups compete with one another to obtain these benefits and services (Lowi 1972; Mann 1982a; Ripley and Franklin 1984). Mann (1982a) asserts that distributive politics at the National level has been one of the "hardiest flowers in the policy-making garden, withstanding the assaults of fiscal freezes, economic/analytical pruning, and the best of environmental pollution control." At the interorgani- zational level, it is a highly political arena in which politicians base their ultimate decisions regarding who gets what upon such factors as perceptions of current power relationships among the groups, public support for one proposal over another, or favors owed by the political entity to the groups involved (Lowi 1972; Doerksen and Lamb 1979; Lamb and Lovrich 1986). 19 This process emphasizes bargaining strategies and negotiation as a way to "cut a deal" among the parties so that, at least in the long run, each relevant and "legitimate" organizational actor obtains something it desired. The legitimacy of a participant is determined primarily by law and custom. Coali- tions among organizations are formed to influence the outcome, but these interests may have little in common except for the support of a particular distributive action. With regard to instream flows, for example, this type activity occurs in lobbying efforts by various groups to, first of all, build a reservoir to hold water for release in dry periods, and then to influence the way in which that water is ultimately distributed (Lowi 1972; Doerksen and Lamb 1979; Lamb and Lovrich 1985). In the regulatory arena however, the decision procedure is quite different. Typically, regulatory decisions are made in a quasi-judicial setting by a decisionmaker authorized to make the decision (Lowi 1972; Ripley and Franklin 1984), referred to here as the arbitrator. The type of arbitrator authorized to make the decision is determined by the laws and issues involved, as well as by the types of groups participating. The Federal Energy Regulatory Commission (FERC), for example, often serves this function in hydroelectric licensing applications. The objective of an arbitrator is to choose from among the proposed alternatives the best solution to the problem at hand. In the regulatory arena also, groups coalesce and compete to have their interests incorporated into the policy process, and they tend to do so on the basis of shared interests and mutual goals. Standards, in the form of pel icy deci sions, result in both decisionmaking arenas, but the procedures and bases for making those decisions differ dramatically in each (Doerksen and Lamb 1979; Lamb and Lovrich 1986). The assumption in this paper is that the various organizations involved in instream flow issues tend to have preferences for one arena over the other, depending on the organizational strengths and weaknesses of the organization. The dimension in which these preferences are expressed, however, is one of process rather than substance. These preferences result in specific behavioral patterns that lead to the development of organizational roles. These roles are reinforced by a phenomenon known as organizational process. 3.3 ORGANIZATIONAL PROCESS Just as individuals tend to develop personal styles, so do organizations. This is true in part because each organization develops its own unique set of internal processes, upon which it eventually comes to depend. This is referred to as "organizational process." The essence of this view is that it postulates the existence of organizational routines and programs that shape internal decisionmaking processes (Cyert and Marsh 1963; Allison 1969, 1971; Mosher and Harr 1970; Sharkansky 1970). The idea is that since organizations have goals, which require planning and coordination, standard operating procedures (SOP's) develop within the organization to help it systematically achieve its goals. SOP's are typical methods for dealing with organizational goals and programs that an organization creates early on and that become entrenched over time (Allison 1969, 1971). 20 The end result is an organizational program that affects such things as personnel recruitment; the type and distribution of rewards and punishments within an organization; job tenure; and the internal decisionmaking apparatus of the organization itself. Those individuals and processes that do not fit organizational rules of thumb are weeded out, and the programs developed for goal attainment become even more entrenched. Programs are complex clusters of organizational routines arranged to deal efficiently with day-to-day problems. Thus, internal decisions tend to be based on the very selective collection, generation, and distribution of information relevant more to the organization's routine than to the issue itself. Each organization winds up with a set of relatively parochial priorities and perceptions. Flexibility, however, is the price paid for more certainty in decisions; organizational options are limited in both number and character, and trade-off possibilities are usually ignored. Many SOPs are not very useful, moreover, in new decision situations (Allison 1969, 1971). The context of the problem affects the type of information to which decisionmakers are likely to be receptive (Ingram 1973). An organization tends to develop, through its organizational processes, a particular "fix" regarding the dimensions of the issues involved. Information is then select- ively sorted out based on that conception, and information related to other perspectives or new ways of viewing the problem is not really considered. Indeed, Downs points out that decisionmakers tend to "... think in terms of traditional or habitual categories which are often unduly narrow in relation to their [real] needs," a bias that leads to the "one best way" approach to problems. Alternative approaches or solutions are thus frequently not even considered (Downs 1965). For example, water development projects, such as dams, levees, or irrigation works were seen for so long as a means to stimulate local economies that it was difficult to convince project developers of the need to examine the environmental implications of these projects. The "relevant" information included — and tended to be limited to — data on project feasibility, benefits and costs, and the strength and unity of local support (Ingram 1972). Environmental impact data, given this perception and context, were "irrelevant." Furthermore, once an organization becomes committed to an initial decision or approach, no matter how inappropriate it may be the organi- zation will actually reject information that suggests alternatives (Rosenthal and Weiss 1966). Thus, because of unflagging dependence on SOP's to define the range of "acceptable" behavior and "relevant" information, an organization tends to collect and evaluate the same type of data regardless of its ultimate utility in persuading the other decision participants. SOP's provide stability in organizations to be sure, and stand as decision rules that individuals and organizations alike can rely on from one problem to the next, lending continuity and certainty to the overall process (Mosher and Harr 1970). Many internal organizational decisions are thus predictable. Knowledge of the ways in which organizations typically make internal decisions — such as flow recommendations — and the ways in which organizations tend to pursue goals, provides a basis for making preliminary predictions about interactions and outcome. 21 Organizational routines are difficult to change- (Mosher and Harr 1970). There are instances, however, in which organizations deviate from established routines, and become more innovative and accepting of atypical perspectives and solutions. Sharkansky (1970) suggests that these instances are brought about over time by a number of factors, including National traumas, decisions taken at one level of government that affect another level, and changes in the level of economic resources available. Such happenings can lead to a situation becoming ripe for change. Indeed, all of these factors can be seen as having had some causal impact on the changes that have occurred in the last decade in the recognition of instream values and the development of a variety of mechanisms for their positive inclusion in water policy decisions. Typically, change is difficult to achieve, however. LIAM assumes that an organization's internal decisions are shaped by organizational processes. These, in turn, are reinforced by the group "cultures" that tend to develop within organiza- tions, which also reinforce organizational roles (Simon 1964; Schlesinger 1968; Janis 1972; Janis and Mann 1979; White 1986). 3.4 GROUP PSYCHOLOGY "Group psychologies" tend to develop within organizations, especially in subunits, along with organizational processes. Janis (1972) refers to this as "groupthink. " Groupthink is a "mode of thinking that people engage in when they are deeply involved in a cohesive group" (Janis 1972:9), and which evolves into an espirit de corps — or a "we" feeling of sol idarity--among group members. Group solidarity is reinforced by a number of factors, including group norms or rules of the game, a group vocabulary, and a group perspective or view of the world. Often, these phenomena are reinforced by such things as "... honest conviction, bias, recruitment, limited information and the structure of power ... [and] these mutually reinforcing tendencies provide for the preservation of their own kind ..." (Schlesinger 1968:284). Subtle constraints exist, moreover, which strengthen group consensus. New members are socialized into acceptance and support of group norms. Deviant members are punished, either by exclusion from intra-group belonging or expulsion from the group altogether (Janis 1972; Mumme and Ingram 1984). A number of studies have provided evidence for the existence of groupthink within many types of groups and organizations. Fenno (1970), for example, discovered four major norms operant in the House Appropriations Committee. Newcomers were found to undergo an "initiation rite" in which they learned to adhere to these norms. Kornberg (1970) examined the degree to which formal and informal rules and sanctions are utilized to reinforce group norms in the Canadian legislature. Mumme and Ingram (1984) studied the Papago Indian tribes in southern Arizona, and found a very anti-individualistic group culture that emphasized such values as cooperation, communal ity, and social harmony. For this group, consensus is highly valued in political decisions, especially with regard to the management of water resources. Beckett and Lamb (1976) identified another factor that increases group cohesiveness, at least within organizations involved in the resolution of instream flow issues: professional alliance. Professional alliance refers to the high degree of understanding and cooperation that develops among 22 individuals of the same profession — others have also found evidence of this phenomenon in other professions and among professionals in general (Goleman 1954; Lipset and Schwartz 1966; Twight and Catton 1975; Alston 1983). It seems that similarity in education and professional background among group members in an organization decreases antagonism and leads to more interaction, not only within organizations, but among them. Groupthink, however, often contributes to organizational inability to solve problems. Janis (1972) identified six tendencies that result from groupthink within organizations. 1. Discussions are limited to a few alternative courses of action, without a survey of the full range of options. 2. The group fails to reexamine later the initial preferences expressed by the majority of members, from the standpoint of nonobvious risks and drawbacks that had not been considered originally. 3. Group members neglect courses of action initially evaluated as unsatisfactory and spend little or no time discussing whether there are ways, for example, to reduce the seemingly prohibitive costs that had made the alternatives seem undesirable to begin with. 4. Group members make little or no attempt to obtain information from experts who can supply sound estimates of losses and gains to be expected from alternative courses of action. 5. Selective bias is shown in the way the group reacts to factual information and relevant judgements from experts, the media and outside critics, and instead the group shows interest in facts or opinions that support their initially preferred policies. 6. Groups spend little time deliberating about how the chosen policy or course of action might be hindered by bureaucratic inertia or sabotaged by political opponents. Indeed, a dominant characteristic of groups is that members tend to remain loyal to the organization by sticking to the norms and decisions to which the organization has committed itself, even when the policy is working badly or has unintended consequences that are disturbing (Janis 1972; Janis and Mann 1979; Cialdini 1984; Goleman 1985). The tendency of individuals and groups to stick to decisions and/or attitudinal commitments is well documented (Festinger 1957, 1964; Cohen et al . 1963; Ingram 1973; Cialdini 1984; Goleman 1985). As with organizational process, all aspects of group psychology are not negative. An organization with properly defined internal roles, with traditions and routines to which it consistently adheres, may well make good decisions. The key difference, though, is that these norms and SOP's must facilitate critical thinking and not block it. Further, organizational culture, and the values and loyalties that are a part of that culture, serve to "knit together the institutional fabric" of an organization, and represent the intangibles that make for 23 organizational pride and morale. Without them, organizational functions could not be decentralized and delegated with any confidence in consistency. Organizational behavior is thus highly predictable, particularly in response to new values that pose a potential threat to organizational goals, power, or survival (Seidman 1970). Using the context of "roles" developed within LIAM, organizational behavior patterns peculiar to instream flow issues thus can be identified, and predictions made about both the interactions that occur among the organizations and organizational influence on outcome. 3.5 BUREAUCRATIC POLITICS Most natural resource decisions are the result of conflict, competition, and compromise between officials and organizations with diverse interests and unequal abilities to influence the outcome. Variously labeled "partisan mutual adjustment" (Lindblom 1965) and "bureaucratic politics" (Allison 1969, 1971; Allison and Halperin 1971), in this process, adversary bargaining is the rule (Ingram 1972, 1984). Whenever a decision is the result of compromise, the chosen alternative will tend to benefit many goals somewhat, but maximize none totally. The way to understand a decision, in this view, is to discover the elements that are involved in the bargaining that precedes it; or if the desire is to maximize the amount of influence one has, the objective is to be able to predict the ways in which intergroup bargaining will occur. If bargaining power is concentrated in one group or set of groups, for example, the decision that emerges will reflect those organizations' separate and mutual goals to a higher degree than those of other organizations involved. The more influential organizations, in short, have a proportionately greater impact on policy outcomes (Doerksen and Lamb 1979; Lamb and Lovrich 1986). In a study by Beckett and Lamb (1976), evidence was found for the opera- tion of this process in instream flow decisions. These authors observed the prevalence of bargaining among organizations as a means to achieve policy. The art of instream flow politics, then, is the ability to get things done in such a context — and to predict the moves of the other players. In the process of mutual adjustment that usually occurs, the outcome is heavily dependent on the relative abilities of participants to operate effectively and influence the outcome. This involves power. 3.6 POWER Power has long been a topic of interest to those researching administra- tive behavior and influence (Long 1949; Dahl and Lindblom 1953; Simon 1957b; Wildavsky 1979). According to Bachrach and Lawler (1981), power is the "essence of bargaining" and the key to understanding policy decisions made in a climate of mutual accommodation. Some researchers have examined power as a function of hierarchical bargaining ability, i.e., as a function of the position of an organization in the institutional hierarchy in which it is located (Dahl and indblom 1953; 24 Simon 1957b; Seidman 1970); the actual resources an organization has at its disposal (such as personnel and money) (Fenno 1966; Lamb and Doerksen 1978; Rourke 1976; Clarke and McCool 1985); and the expertise the organization has or the information it can control in given policy areas (Benveniste 1977; Rourke 1976; Clarke and McCool 1985). In this latter regard, the power to control the flow and type of information that reaches decisionmakers leads to the ability to define the range of feasible or acceptable alternatives, and thus can have a direct and substantial impact on ultimate policy choices. Power has also been examined from a political perspective; power, in this view, derives (at least in part) from the extra-organizational support (e.g., public, political, constituency, clientele) an organization is able to build for itself and the goals it represents (Rourke 1976; Lamb and Doerksen 1978; Clarke and McCool 1985). Power, moreover, is dynamic and fluid rather than static; it consists not only of the actual resources an organization has at its disposal to pursue a particular outcome, but its willingness to use those resources in a given situation; the type of tactics it chooses; and the successes and failures it has accumulated in the past in similar issues (Bachrach and Lawler 1981). Keeping these facts in mind allows one to better predict the outcome from an analysis of the power relationships involved, and has within it elements of reputational or historical power that can be converted into influence. The power to persuade is the key ingredient to influencing policy outcomes (Lamb and Doerksen 1978; Neustadt 1980; Bachrach and Lawler 1981). All of these notions of power have been incorporated into LIAM. 3.7 SUMMARY The four assumptions that underlie LIAM have been examined and explained; the first three of these contribute to the development of organizational roles, while the fourth specifies the way in which these roles are assumed to be played out in instream flow decisionmaking issues. In brief, they are as fol lows: 1. At the organizational level, decisions are made incrementally; that is, internal organizational decisions are based in large part on past experience, and new choices differ only marginally from past policy stands; 2. At the organizational level, decisions are also shaped by organiza- tional process — standard operating procedures that have developed over time and that determine the nature and functioning of the organization's internal decisionmaking structure; 3. Both incremental i sm and organizational process are reinforced by the existence of organizational "psychologies" — intergroup solidarity and cohesiveness — which also helps explain the persistent reliance on incremental i sm and organizational process; 4. At the system or intergroup level, decisionmaking between or among is characterized by competition, bargaining, and compromise; the 25 degree to which any one group has to adjust its position, moreover, is directly related to the power differentials involved, and the relative position of that organization vis-a-vis the others. The first three facets of decisionmaking listed above ( incremental i sm, organi- zational process, and group psychology or culture) also represent the factors that lead to the development and persistence of the organizational roles outlined in this chapter. Within the general boundaries established by the laws, and the set of policies that develops under those laws, interested parties come together and determine the ultimate policy outcomes. This process is a highly competitive and interactive one, and the driving force that moves the issues toward resolution is power. Figure 1 summarizes the theoretical concepts outlined above, as they are assumed to operate in the model. The major idea here is that there are three factors that lead to the development and persistence of organizational roles in instream flow conflicts. The first of these in Figure 1, incremental i sm, refers to the fact that organizations decide what specific objectives to pursue in a given conflict based on similar experiences in past conflicts and from having interacted with the other organizations involved. Changes in past policies are pursued then, in an incremental fashion, with each alteration differing only marginally from past objectives. The way in which organizations, once having decided on objectives, then go about pursuing those goals, is also based on past experience, and defined, in large part, by internal organizational processes that develop over time as the means to achieve specific ends. And, finally, the internal group "culture" that an organization develops over time, and into which it socializes new members, reinforces reliance and adherence to incremental decisionmaking, in general, and organization process, in particular. Group psychology comes, in short, to determine the "why" of an organization's goals and the ways in which it pursues those goals. All of these factors occur within organizations — and hence analysis of these facets is conducted at the group level of analysis. These factors are postulated to exist and to lead to organizational roles — and organizational behavior associated with roles--apart from, although certainly connected to, any interactive behavior that occurs between the organizations involved in a resource conflict. Organizational role is the link between group and intergroup behavior and, as can be seen in Figure 1, is played out in two distinct dimensions. The first has to do with preference to operate in a particular type of decision arena, and includes brokers and arbitrators. The second is related to preferences for outcome, and includes advocates and guardians. The ways in which organizations adjust their positions in the course of interaction and negotiation — the degree to which each is forced to compromise to obtain at least part of its original objective — is largely a function of the power that the organization brings with it to the conflict. As can be seen in Figure 1, power in instream flow issues derives from the resources, expertise, and outside support that an organization has at its disposal, as well as the degree to which it is willing to use these elements of power to 26 LIAM: THEORETICAL UNDERPINNINGS Factors which build role Incrementalism (What?) Organizational Process (How?) Group Psychology (Why?) <^ Role types Process Preference Goal Preference Arbitrator Advocate Broker Guardian Decision arena POWER Partisan mutual adjustment or Bureaucratic Politics Resources Expertise Support Bargaining Behavior Figure 1. The theoretical concepts used to develop the Legal Institutional Analysis Model. 27 force an outcome that is favorable to its own position. Power and roles come together in a climate of bureaucratic politics, and lead to the bargaining behavior that is ultimately displayed by the organizations involved in an instream flow conflict. Analysis of these concepts as they affect instream flow issues occurs in four distinct phases. These phases are examined in the fol lowing chapter. 28 4. THE FOUR PHASES OF LIAM The Legal Institutional Analysis Model (LIAM) provides a step-by-step process for understanding a particular instream flow issue and building effective strategies for participation in its resolution. This process is divided into four steps or phases, all of which operate on the assumption that individuals can accurately describe the factors that will influence the outcome of an instream flow conflict, and then determine the ways in which organiza- tiona influence can best be brought to bear on the process. These phases include: (1) traditional surveys of the organizations and laws involved; (2) a description of organizational roles; (3) an analysis of the power relationships; and (4) an assessment and prediction of likely organizational behavior (Figure 2) . Phase I analysis is similar to the traditional assessment recommended and discussed in the literature, which has long been an important ingredient of policy analysis. In Phase I, an analyst attempts to answer the question: Who will participate in this conf 1 ict--and upon what statutory basis, if any? 4.1 PHASE I: SURVEY OF AUTHORITIES Understanding the general context in which a decision will be made is necessary to properly scope a problem prior to participation in its resolution (Ingram et al . 1984). Many factors operate to define a resource issue. The steps in Phase I help the analyst to identify two of these factors and to organize them for further analysis. In the case of instream flows, as with other resource issues, understanding begins with the identification of the specific organizations and laws involved. The laws determine the number and types of organizations to be involved as well as set the general boundaries within which interaction among those organizations will occur. Thus, Phase I analyses are conducted in two separate steps: the organizational survey and the legal survey. In this manner, the analyst can identify the relevant organizational participants that need to be included in the overall analysis, and then determine the legal authority that each will bring into the decision process. Organizational Survey Relevant organizational participants need to be identified for three important reasons. First, the number and type of organizational actors must be considered preparatory to determining the role types involved. Second, the "mix" of organizations involved determines, in large part, the type of arena in which interaction will occur, which in turn shapes the nature of that interaction and gives the analyst some basis for preliminary predictions about 29 Phase I: Survey of Authorities List the organizational entities (i.e., agencies, interest groups, private organizations) that are involved; then describe the legal authorities (statutory and case law) that condition the actions of these organizations. Phase II: Role Analysis Describe the roles expected to be played by each organization that is a party to the problem. Phase III: Power Analysis Describe the elements that make up each organization's base of power, and evaluate the relative power of each entity that is party to the problem. Phase IV: Behavior Analysis Based on knowledge of roles and power, predict the behavior (concerns, needs, and tactics) of each organization and prepare a plan of action. Figure 2. The four phases involved in conducting legal institutional analyses. 30 outcome. Recalling the previous discussion about the two decision arenas in which instream flow problems are typically resolved, if many organizations that prefer to operate in the distributive arena are involved, the likelihood exists that these organizations will take some sort of mutual or independent action to see to it that the issue is resolved in that arena, as opposed to the regulatory arena. Finally, identification of the organizations involved is necessary so that this information can be tied to the legal survey, which is the second step of Phase I. Legal Survey The laws involved in a particular instream flow decision represent the "decision foundation" of the past, onto which the new decision will be grafted, in an incremental sense. "Laws," in this context, refer not only to the specific State or Federal statutes that set the legal boundaries for a particular project or program, but also to administrative policies developed therefrom, administrative requirements for implementation, applicable judicial precedents, and the like. In instream flow and other resource issues, small decisions are grafted onto the foundation of existing policies, as adjustments are made for time, place, and context. At this level, incremental changes in past policies are made as groups come together and interactively determine each instream flow outcome. Typically, no attempt is made to recreate the basis upon which new flows are determined and promulgated. Instream flow protection programs are typically initiated in this manner at the State level. That is, a general statute is passed, often with vague or indefinite goals, which, in turn, sets the boundaries within which policies are ultimately developed to achieve those goals. The point is that neither laws nor policies are made once and for all time; they are adjusted incrementally, and the sum total of these alterations represents the legal framework that is relevant for the resolution of an instream flow issue. By knowing the content of the legal foundation, and the changes that have been made in the past, one is in a better position to anticipate problems and to positively contribute to the process that shapes the outcome. Thus, in Phase I, after identification of the organizational participants has been completed, the analyst moves on to determine the relevant statutes (and the policies and rules developed from those laws), both State and Federal, that set the legal boundaries for resolution of the issue. And, finally, an effort is made to determine the type and degree of statutory authority that each organization has to participate in the negotiation. The identification of the organizations and laws involved in a resource issue is an important step in understanding that issue and participating in its resolution; indeed, such an analysis is typically conducted (Ingram et al . 1984). In this sense, the steps in Phase I are "traditional" but important ones. Once such a "traditional survey" has been completed, the analyst is ready to move to the behavioral aspects of the analysis, dealing with roles. 31 4.2 PHASE II: ROLE ANALYSIS Because of their planned nature and drive for calculable behavior and interaction, organizations are particularly amenable to analysis using the concept of role (Yarwood and Nimmo 1976). Roles can be thought of as guides for understanding, characterizing, and predicting organizational behavior (Lamb 1980). Organizations tend to play certain roles, moreover, with remark- able consistency (Golembiewski 1976). The concept of roles has been used in explaining the budgetary process (Fenno 1970; Wildavsky 1974, 1975; Hrebrenar 1976). These works suggest that: (1) roles are strongly associated with expectations of behavior attached to an institutional position; (2) the various roles seem to fit in with one another to form a stable pattern of mutual expectations; (3) frequent contact increases understanding among the participants of the roles being played; and (4) the more homogeneous the membership of a group, the more consensus it is likely to have regarding its own organizational role (Wildavsky 1975; Hrebenar 1976). Hrebrenar (1976) found that (contrary to his expectations) the best predictor of budgetary decisionmaking behavior is past behavior patterns in similar types of decisions. LIAM incorporates a view of organizational roles that is consistent with these findings. Because there are identifiable actors, issues, and activities that are peculiar to the establishment and maintenance of instream flows, and that occur within the boundaries set by statute, legal precedent, and tradition, decisionmaking here is characterized by heavy reliance on roles, and is shaped by the interactions that occur between organizations. These interactions, moreover, are themselves characterized by traditional patterns that have emerged over time and that condition the outcome (Beckett and Lamb 1976; Lamb 1980a; Olive 1981a, b; Lamb and Lovrich 1986). Thus, organizations enter a conflict with knowledge of their own position and the positions of others, particularly when they have interacted with these organizations in the past. Behavior thus tends to fall into standard and recognizable types, and the policy outcome often depends on how skillfully the collective actors can use this knowledge in dealing with other participants (Doerksen and Lamb 1979; Lamb and Lovrich 1986). The role types that have been developed and included in LIAM are the result of three processes that occur within organizations and that have been documented in social science research. These processes were described under the theoretical section of this chapter and include: incremental i sm, organiza- tional process, and group psychology. First, organizations tend to make internal decisions based on past decisionmaking efforts, and rely heavily on the record of their own past experience to do so. Each organization, moreover, enters the bargaining process with its own position little altered from its past proposals or recommendations and, as negotiation progresses, these recommendations are again adjusted incrementally as a result of compromise. Incremental ism, then, can be viewed as shaping the "what" of organizational behavior. Second, the ways in which organizations pursue their organizational goals also tend to remain constant over time. Organizational processes, then, can be said to shape the "how" of organizational behavior. Third, the group psychology that develops within an organization also affects organizational 32 behavior and contributes to the development and persistence of organizational roles. Four role types are postulated to characterize behavior in natural resource management issues: broker, arbitrator, advocate, and guardian (Beckett and Lamb 1976; Doerksen and Lamb 1979; Lamb and Lovrich 1985). These are represented as opposite extremes of two different behavioral dimensions. That is, organizational behavior is predicted to occur in two distinct dimensions, each of which results from a set of organizational preferences. The first dimension concerns the procedural preferences that shape organiza- tional behavior, and stems from the preferences that organizations have for the arena in which an issue is to be decided. Thus, organizational behavior in this dimension can be viewed as occurring along a continuum, with two opposite role types located at each end. The two roles associated with this preference are labeled in LIAM as "broker" and "arbitrator" (Figure 3). Broker Role Type Generally speaking, a broker is an organization that combines two characteristics. First, it has some sort of physical control over natural resource systems, allowing it to physically control the allocation of water; and second, it possesses a highly political nature. A broker prefers solutions that spread the benefits to be derived from a decision around so as to satisfy as many interests as possible, or in a way that maintains its own power base. An extreme broker prefers to make the decision itself by compromise, bargain- ing, and coalition building. Less extreme players located along this continuum may not actually broker the decision, but prefer a bargained solution nonethe- less. A broker is thus in a position to support either environmental or developmental interests. It is heavily influenced by political facts or expressions of support from higher authorities and cost-benefit information that demonstrates how the benefits to be derived from a proposed course of action can be divided among the parties. Brokers tend to push for negotiated solutions as a means to achieve results and to satisfy as many of the players as possible. Consensus is preferred. Examples of organizations of this type include the offices of State governors. State legislatures, some planning divisions within the U.S. Army Corps of Engineers, many politically created citizens boards and some State water allocation agencies (Beckett and Lamb 1976; Doerksen and Lamb 1979; Lamb 1980a; Lamb and Lovrich 1986). Of course, not all organizations that prefer the brokered or distributive decisionmaking arena are brokers themselves, but may be closely tied to broker organizations or just prefer "brokered" decisions. For example, the group may have had a long-term and mutually beneficial relationship with the broker in charge of a particular decision outcome. Or the group may simply prefer a brokered decision in one instance because of political favors owed to it by other players or because of the type of power that it has. Organizations do prefer a certain type of procedure for decisionmaking, however, even if the organization is unable to make the decision itself. 33 Distributive Politics BROKER state Legislature Water Conservancy District CO c 0 Department of Game FERC O o CO o o Q ARBITRATOR Regulatory Politics Figure 3. The location of four organizations along the Broker-Arbitrator continuum. 34 Arbitrator Role Type Arbitrators prefer an entirely different type of decisionmaking process. An arbitrator usually has statutory authority to promulgate flow regimes or the ability to legally control the allocation of water. Thus, it generally presides over a judicial or quasi-judicial process and determines the ultimate policy outcome itself, based on the adversarial presentation of technical or scientific information. This information is presented by the opposing sides of a conflict to persuade the arbitrator to accept their respective positions. Arbitrators tend to solicit such information from all sides of a conflict, in an effort to reach an "objective" decision. Examples of organizations of this type include: State and Federal courts, the Federal Energy Regulatory Commission (FERC), some State engineers, and some permitting elements of the Environmental Protection Agency (Beckett and Lamb 1976; Doerksen and Lamb 1979; Lamb 1980a; Lamb and Lovrich 1986). As was the case with brokers, not all organizations actually "arbitrate" an outcome. But some organizations tend to prefer this process over the other, and organizational behavior results from this preference. Figure 3 illustrates how these preferences might be characterized in an instream flow conflict when preference for decision arena alone is considered. As can be seen, four organizations are arrayed along the Broker-Arbitrator continuum. Both a State legislature and a water conservancy district are located in the upper half of the diagram; however, the State legislature is farther out on the continuum, indicating a more extreme preference for a brokered decision, perhaps because the State legislature in this instance is the decisionmaker. The water conservancy district also prefers a brokered result, although to a less extreme degree. Once again, perhaps this is because of its political ties to the State legislature or its ability to influence election outcomes within that body. In the lower half of the diagram, the Federal Energy Regulatory Commission lies at the more extreme end of the continuum. Being a classic arbitrator, FERC strongly prefers to have the decision made within its own domain. A State department of game, however, is rarely in a position to actually arbitrate a decision. Yet, because of its data-collection routines, it prefers to operate in a situation where an arbitrator, such as FERC, is in charge, and where it is likely to have the most influence. The second behavioral dimension is also one of preference, but, in this case, the preference is for the actual outcome, and thus is closely related to an organization's traditional values or mission. The two roles associated with this dimension, "advocate" and "guardian," are located at opposite ends of the horizontal axis in Figure 4 (Beckett and Lamb 1976; Doerksen and Lamb 1979; Lamb 1980a; Lamb and Lovrich 1986). The same element of degree comes into play along this continuum, i.e., the farther out on the continuum an organization is located, the more extreme is the indicated role. Advocate Role Type An advocate is an intensely ideological, prochange, and usually environ- mentalist organization. It actively seeks to alter the traditional (typically prodevelopment) ways in which National resources have been used and managed. It may be prepared to operate and exert influence in either the distributive 35 ADVOCATE Distributive Politics BROKER Goal CO C Preference GUARDIAN c o O 0 Q ARBITRATOR Regulatory Politics Figure 4. An LIAM role map, 36 or regulatory arena, but will urge that resources be conserved or protected and that projects and developers be strictly regulated. An advocate is typically quite vocal on behalf of the values it represents and is unwilling to compromise. Usually without statutory authority to prevent by caveat what it views as environmentally harmful projects, it instead reacts to proposals and projects initiated by others. It tends to be well prepared to demonstrate the "correctness" of its viewpoint through its well-developed data gathering and analytical capabilities. It will not hesitate, however, to back up scientific or technical facts with crusading campaigns initiated on behalf of its values. Thus, it attempts to cultivate media and public opinion on behalf of the environment, and typically is associated with environmental "associations" or "clubs." Examples of advocate organizations include the Division of Ecological Services within the U.S. Fish and Wildlife Service, State fish and game departments, the National Marine Fisheries Service (NMFS), and environmental interest groups, as well as some consumer and health and safety organizations (Beckett and Lamb 1976; Doerksen and Lamb 1979; Lamb 1980a; Lamb and Lovrich 1986). Guardian Role Type At the other end of the goal continuum, guardians attempt to protect the productivity or market utility of resources. They safeguard the traditional ways in which natural resources have been used and managed. A guardian will therefore resist attempts at change that might be urged by advocates or others. Since it is usually possessed of established and influential constituencies, whose interests it must protect, a guardian prefers political strategies to persuade others of the correctness of its view. These political strategies are usually "traditional" logrolling and influence-based processes. Like the advocate, the guardian is also extremely ideological, but in this case, ideology centers around such values as "economic progress" and "developmental benefits." Examples of organizations of this type include the U.S. Bureau of Reclamation; U.S. Forest Service; water conservancy districts; special districts, cities, and counties; the Division of Refuges within the U.S. Fish and Wildlife Service; State departments of parks and recreation; bankers; and various land interests (Beckett and Lamb 1976; Doerksen and Lamb 1979; Lamb 1980a; Lamb and Lovrich 1986). Role Patterns In any instream flow conflict, a variety of organizations become involved; each of these organizations brings with it preferences, both for the outcome and for the arena in which that outcome is to be generated. An organization's preference for outcome is linked to its goals or mission, whereas the procedural preference is related to the resources it has at its disposal to influence the outcome. Not every organization holds these preferences to the same degree or in the same order, however. For example, a State department of fish and game may, in any given conflict, prefer to have the decision arbitrated, but it will also prefer a certain type of outcome, presumably one which protects a threatened fishery or establishes a flow regime that meets the ecological requirements of a particular ecosystem. Its behavior, though, will be 37 dominated by the stronger preference. If it turns out to be for a particular type of outcome, then the preference for an arbitrated solution will be secondary. An organization exhibits behavior associated with two role types simultaneously in each issue in which it is involved. The degree to which each role type is exhibited may vary from issue to issue; however, one role typically dominates. Advocates and guardians also tend to design their behavior to accomodate the presence of an arbitrator or broker, and will attempt to push the decision toward resolution in whichever arena they feel will support their values (Olive 1981a, b, 1982). Different strategies are pursued by these organiza- tional types, depending on the issue. Advocate organizations, for example, often develop data gathering and analytical capacities, which are most influential in the regulatory arena, and are often highly familiar with procedures used by arbitrators to make decisions. Arbitrators tend to rely on them for information and the opportunity to act. Guardians are more familiar and comfortable with political strategies and often seek to use their constituencies to show injury from an advocate's initiatives. LIAM allows the analyst to discern the dominant role type expected for each organization, as well as its secondary role type, and the degree to which organizations can be expected to exhibit both types of behavior. Each organi- zation is evaluated in terms of all four role types; expected behavior is calculated within each dimension; and the role type that appears to most accurately describe an organization's behavior is the dominant role. Each organization is located in a particular behaviorial space that is defined by its location in both dimensions at once. Figure 5 illustrates the relative positions of two hypothetical organiza- tions. The circular line within a quadrant represents the midpoint in that quadrant. Organizations located within the circle, closer to the point of origin, are moderate role players, whereas those outside it are more extreme. The diagonal dotted lines divide each quadrant in half, so that an analyst can determine the dominant role type for an organization. In this example, the State legislature is located in the upper right-hand quadrant on the left-hand side of the dotted line in that quadrant, closest to the broker continuum. Its dominant role type is that of broker. Thus, this particular State legisla- ture is predicted to strongly prefer the decision to be a brokered one, and its behavior in this regard will be extreme. It will actively seek to pull the issue into this arena. At the same time, though, it will tend to lean toward the type of outcome usually promoted by guardians. If it has the opportunity to broker the decision itself — as is probable — it is likely to be highly receptive to information supporting guardian values. The FWS-ES is located in the lower left-hand quadrant, beyond the circle; thus, its behavior as an advocate will be extreme. It prefers an arbitrated solution, though not to an extreme degree. Each of the 16 subquadrants (A - P) in Figure 6 has associated with it different types and degrees of role playing. These 16 behavior patterns are described in Appendix I. By examining the number, types, and relative positions of all the players in a given conflict, an organization preparing for involvement in an instream flow conflict can develop strategies that will 38 BROKER T State Legislature / ADVOCATE GUARDIAN I I -^ ARBITRATOR Figure 5. The location of two typical organizations on an LIAM role map. 39 BROKER ADVOCATE GUARDIAN ^ 1 ARBITRATOR Figure 6. The sixteen subquadrants (A - P) of an LIAM role map. 40 be most appropriate to the problem at hand. These strategies, moreover, will necessarily be of a bargaining nature, since natural resources issues are resolved in a climate of bargaining (Ingram 1972). 4.3 PHASE III: POWER ANALYSIS In any instream flow problem, there Are inevitable and conflicting preferences among actors with unequal levels of power and influence. Each organization, in the process of interacting with other participants in a bargaining situation, modifies its original objectives to achieve a mutually acceptable decision that at least partially benefits its original goal. Neither side, as was the case with the Cedar River problem, typically has enough support to achieve its goals totally or by simple caveat. Organizational power in instream flow issues is postulated to exist in three major categories: resources, expertise, and support. In the first category. Lamb and Doerksen have identified a number of important sources of power, all of which relate to the actual resources an organization has to expend in the resolution of a conflict at any given point in time. These include: statutory authority; the ability to physically control stream flow; designation as the implementing agency; legal ownership or management of the land or water in question; political support; public support; money; personnel; and the frequency and intensity of past involvement in such issues (Lamb and Doerksen 1978). These last two elements of power — frequency and intensity of past involvement — are indicative of the degree to which an organization is willing to commit itself to use its resources on behalf of a particular out- come; commitment is thus an important ingredient of power (Lamb and Doerksen 1978; Bachrach and Lawler 1981). The second category of organizational power has to do with differentials in organizational expertise. The resolution of instream flow issues tends to be highly dependent on the availability of technical and scientific informa- tion; the nature of organizational expertise in relation to the technical issues involved, then, is also a crucial component of organizational power (Lamb and Doerksen 1978; Rourke 1976; Clark and McCool 1985). Methodological sophistication for data acquisition and analysis, for example, directly affects an organization's ability to support its recommendations (Lamb and Doerksen 1978). Important considerations in this regard include: What type of informa- tion is an organization involved in collecting and disseminating — and to what degree? What organizational routines are currently in place that facilitate the flow of information? Does the organization typically produce information that is easily understood by the other participants — both in terms of method- ologies and results? Is an organization dependent on other groups for the information it needs — or is it in the business of supplying such information to others? What is the reputational quality of an organizations' s expertise? Does it tend to generate a high level of respect in its field? The answers to these questions enable an analyst to better predict the tactics that will be chosen by the groups involved to pursue a particular outcome, as well as the nature of the outcome itself (Rourke 1976; Bachrach and Lawler 1981). 41 The last category of factors that influence organizational power in the instream flow context has to do with the degree and type of clientele or interest group support an organization has, either in terms of its general goals or with regard to one specific issue or set of issues (Lamb and Doerksen 1978; Rourke 1976; Clarke and McCool 1985). Relevant considerations here include: How many groups are willing and able to offer support — and to what degree? How cohesive or organized are these groups? How aware are they of the issues involved? How much does the general public tend to support the kinds of goals represented by these groups? And, finally, how politically astute do they tend to be? The potential power inherent in these factors determines the type and nature of strategies that will be chosen by the organizations involved, and sets the stage for the intergroup bargaining that will occur. The tactical choices made by the various participants, however, can in turn alter the power relationships and lead to the selection of other tactics. That is, the inter- play between potential bargaining power and tactical action can transform the bargaining outcome, as the groups compete, coalesce, and mutually adjust their various positions (Bachrach and Lawler 1981). Because of the give and take nature of this process, bargaining outcomes on one issue can affect a party's power with regard to another issue — and the overall settlement at one point in time can affect future bargaining outcomes. The process of mutual adjustment, then, has an extremely fluid quality (Rourke 1976; Bachrach and Lawler 1981). 4.4 PHASE IV: BEHAVIOR ANALYSES As indicated in Figure 7, it is in this final phase (Phase IV) that the information gathered in the previous steps is combined and analyzed. It is here that the analyst examines the information as a whole, and attempts to answer the question: What does all of this mean? Rather than looking simply at the authority, role type, and power associated with each individual organization, the analyst looks at the combination of statutory authorities, role types, and power involved. There are three general types of questions that must be answered in this part of the analysis. The first of these has to do with the arena in which the decision is likely to be made. In this regard, the analyst surveys the organizations that have been previously identified and examined in the first three phases of the analysis and attempts to determine how many of these will prefer an arbitrated outcome rather than a brokered outcome — or vice versa. It is important to determine the degree of these preferences as well. For example, four organizations may exhibit a preference for a brokered decision, and only two desire an arbitrated solution; these latter two organizations, however, may be more successful in pushing the conflict into the regulatory arena, if their desire to do so is extreme. The converse, of course, may also be true. Moreover, those organizations strongly desiring a brokered solution, made in the distributive arena, are much more likely to exhibit behavior that attempts to force participants into that arena. The major considerations here are: (1) the statutory environment surrounding the conflict and (2) the authority each organization has to participate. 42 LIAM: THEORETICAL UNDERPINNINGS PHASE I Factors which build role PHASE II Role types PHASE Incrementalism (What?) Organizational Process (How?) Group Psychology (Why?) X> Process Preference Goal Preference Arbitrator Advocate Broker Guardian Decision arena POWER Partisan mutual adjustment or Bureaucratic Politics PHASE IV Resources Expertise Support Bargaining Behavior Figure 7. Flow chart of the theoretical concerns addressed in each of the four phases of LIAM. 43 Key questions for the organizations identified as preferring to operate in the distributive arena include: Is there any one organization among them with the legal authority or political clout to broker the decision itself? Do the organizations that prefer a brokered process have ties with one another or with the potential broker? Have they worked together frequently in the past-- or formed coalitions among themselves to influence the outcome? This information then must be compared to information regarding the regulatory arena. How many organizations prefer to operate in the regulatory arena? Is there one among them with the authority to arbitrate? Is litigation likely if the decision is not arbitrated? Based on the answers to these and similar questions, the analyst can develop strategies for participation in the conf 1 ict. A second set of questions has to do with the organizational values associated with the conflict. Each organization has a preference for a particular type of outcome, no matter what its preferences for arena, and the various organizations involved will pursue their preferred outcomes with varying degrees of intensity. It is important, then, to determine not only number of organizations preferring guardian-type outcomes over advocate ones, but the intensity of these preferences as well. For example, is protection of the particular resource involved a major mission of any of the organizations? If so, how many? What is the likelihood of two or more of these organizations forming a coalition on behalf of these resources? How actively will they pursue change? What type of change? Conversely, how many organizations are there that strongly desire to see this particular project or developmental initiative undertaken? What stakes are involved for these organizations? What types of information and tactics will the groups likely pursue, given the nature of their commitment and interest in the outcome? Is compromise likely? If so, by whom? What trade-offs might develop? Answering these questions puts an analyst in a better position to determine the most effective strategies to pursue on behalf of a particular set of values. If it appears, for example, that intensely committed guardians outnumber the advocates, and that the decision will likely be a brokered one, an advocate organization can choose from among alternative strategies those that are most likely to advance its own position and enhance its ability not only to communicate with the guardians involved, but to influence the outcome so that its own objectives are at least partially achieved. 44 A final set of questions, which need to be answered prior to developing these strategies, has to do with the types and distribution of power among the participants. It is here that the analyst attempts to answer the questions: Given the distribution of preferences for both process and outcome among the participants, and differing levels of intensity with which these preferences are likely to be pursued, how much power will these organizations have at their disposal to do so? What types of power will come into play? What relationships (especially in terms of power coalitions that are in agreement regarding preferences for process or outcome) are likely to develop among these organizations? If an organization, for example, is confronted with a powerful coalition that is intensely interested in the conflict (whatever the nature of that coalition), the strategies it chooses are very likely to be quite different than if no coalition existed. That is, if the organization expects to have any degree of successful participation at all. The following chapter introduces the computerized model developed for gathering information about a conflict and the organizations involved. 45 5. LIAM: THE COMPUTER MODEL Preparing for involvement in an instream flow issue is no easy task. At a minimum, it involves an examination of laws and institutions as well as development of strategies for pursuing organizational goals based on that information. Preparation of the scope and depth envisioned here may seem overwhelming. The computerized version of LIAM has been developed to provide a systematic, efficient, and theoretically sound method of analysis to simplify the task. Conducting institutional analyses using the computerized version of LIAM begins with logging on to the computer terminal and creating a file to store information about the instream flow issue. The User's Manual contained in Appendix II gives complete instructions for using LIAM. There are three major computer programs in LIAM — Query, Looky, and Mapum — each of which is discussed briefly in the following paragraphs. 5.1 THE COMPUTER PROGRAMS "Query" is an interactive program that runs the questionnaire that is the information-gathering element of LIAM. The questions contained in this program were developed based on the theoretical assumptions discussed in Chapter 3. The questions in Query are divided into three major sets, and each of^ these relates to one of the first three phases discussed in Chapter 4: survey of authority, role analysis, and power analysis. Organizations tend to develop consistent behavioral patterns, and these behavioral patterns have been categorized in LIAM; 16 distinct role types that are associated with organizations typically involved in instream f low conf 1 icts have been specified (see Appendix I). The questions in Query help the analyst identify role types for each of the organizations being analyzed. And, since most resource decisions are ultimately made through a bargaining process, the questionnaire also allows the analyst to examine the relative amount and types of power each organization has at its disposal and may be willing to bring into the bargaining process. By answering the questions contained in this program, the analyst can approximate the legal setting and key organizations in a particular dispute, as well as the legal authority assigned to those participating organizations, the behavior patterns associated with each, and the power relationships involved. The analyst then uses the other two programs of LIAM, Looky and Mapum, to examine and analyze the conflict. 46 5.2 PRELIMINARY STEPS BEFORE RUNNING QUERY Prior to actually running Query, the analyst must take several preliminary steps. First, organizational participants to be included in the analyses must be identified. The goal is to identify all organizations, both private and public, that will actively and directly participate in the decisionmaking process. In selecting organizations for inclusion in the analysis, the analyst should consider those organizations that typically participate in similar issues (e.g.. State and Federal agencies) as well as those having a direct stake in the outcome (e.g., project developers, resource consumers). In addition, organizations with a political stake in the issue should be included; that is, even though an organization may not have a direct interest in one specific outcome over another, it may have a real interest in seeing to it that the issue is decided in a particular manner, and will become involved as a result of that interest. The idea is to identify and include all groups that will participate, interact, and have some sort of influence on the outcome. Comprehensiveness is desirable, since the overall analysis will be flawed if significant groups are omitted. This is because groups interact in a negotiation; that is, each group not only behaves in a certain fashion, but also responds to the behavior of other groups as the negotiations proceed. Omitting one significant group may lead an analyst to ignore an important set of stimuli to the intergroup interactions. The set of groups included in the analysis should be all- inclusive — but real i stical ly so. If too many groups are included that do not interact or affect the ultimate outcome, the analytical effort may become too tedious, the information collected overwhelming, and the tactics developed therefrom vague and difficult to pursue. Identifying organizational participants can be accomplished in a number of ways. First, a review of the laws surrounding an issue will generally indicate which organizations will enter the conflict, as well as the stage of the process at which they will do so, and in what capacity. Typically, the laws will also reveal which organizations must act — and which ones merely have the opportunity to act. Another way to accomplish this task is through the collective judgement of experts in the field. This technique has been success- fully utilized by other disciplines (Linestone and Turoff 1975; Zuboy 1981). The most informal of the "professional committee" approaches is a round- table discussion; these discussions are typically facilitated by a moderator, and although consensus may be difficult to achieve, it is recommended. Scheele (1975) suggests that at least three types of individuals be represented on the committee. Although Scheele was referring to a situation in which diverse groups with differing goals are selected for the purpose of developing habitat suitability criteria, the same principles seem applicable here. The first of these types of individuals are those directly involved in the conflict and who have a "stake" in the outcome. The stake may be of a professional or an ideological nature. For example, the supervisor in charge of an organization's technical or field studies may have a professional interest in seeing to it that the group's recommendations are accepted — or at least considered — while another person within the organization may have an 47 intense ideological interest in seeing to it that a particular objective is obtained. The second type of individual is .lie "expert." These are indivi- duals (from within or outside the organization conduc ing the analysis) who specialize in the technical or legal aspects of the ty le of issue or who have had experience in the issue area. Experts, in Scheele's sense, are typically further removed from the operational aspects of the organization and can bring a measure of objectivity to the process. The third type of individual is the "facilitator." These are people who have keen organizational skills and who are good at moving the discussion forward in a smooth and timely manner. They are also able to clarify facts and synthesize information for the group. In selecting a committee such as this, it is important to remember that the idea is to include diverse points of view. It is also important that the individuals chosen for membership on committees of this type are either interested enough to take the job seriously — or can be provided with enough incentive to do so (for example, monetary awards or certificates of apprecia- tion for participating). Once the panel is selected, the moderator leads it through a series of brainstorming sessions in which: (1) criteria are generated for including organizations in the analysis; (2) all participants are encouraged to identify the organizations each feels are relevant; (3) a list of potential organizations is drawn up by the committee; and (4) the list is discussed and a final number is chosen by the members of the committee. All organizations obtaining an agreed-upon (e.g., 51% to 100% agreement) amount of consensus are included in the LIAM analysis. A more formal approach, which does not have the disadvantages of committees, is the Delphi method. Delphi was first employed in military planning efforts, and has since been used in such diverse areas as health care, the environment, local planning, transportation, and fisheries manage- ment (Zuboy 1981). The most common Delphi exercise is in questionnaire format. In this case, a questionnaire is developed that details the specifics of the conflict and outlines criteria for selecting organizations. This form is then sent to a set of experts (or experienced individuals) who are asked to identify all of the organizations that meet those criteria. The results of the question- naires are combined to produce two short lists. One of these includes all of the organizations identified by an agreed upon majority of the respondents as directly relevant to the issue, while the second includes all those upon which majority opinion could not be reached. The respondents then review this second list and identify those groups that they strongly feel should be included, along with reasons for doing so. The results of the second round are sent back to the respondents, and this process is repeated until the desired amount of consensus is achieved (Linstone and Turoff 1975; Zuboy 1981). Once this has been accomplished, each organization identified should be analyzed by at least three different individuals. These can be individuals either internal or external to the organization conducting the analysis. Each of these individuals — referred to within LIAM as respondents--then answers the questions presented in Query in relation to that organization. It is crucial to have each organization analyzed by three different individuals to obtain an "averaged" set of responses. This is desirable for two reasons. First, individual perceptions of the same organization differ from one another, and while neither perception may be more "right" in an absolute sense than the 48 other, some method for reconciling the different perspectives must be incorpo- rated into the analysis. Second, some people are naturally inclined to lean in one direction or the other, in terms of degree, when responding to questions of the type presented in Query. For example, a series of questions or descriptive statements is presented, and the respondent is asked to indicate the degree to which each statement can be applied to the organization he is analyzing. The following question is typical of those presented in Query: This organization typically focuses on the need to preserve the natural environment in conflicts such as this: (A) Almost always (B) (C) (D) (E) Almost never The respondent selects the response that he thinks most accurately describes that organization. The middle responses are degrees of agreement that are left to the respondent's imagination, since confusion may result if no response choice absolutely "fits" the description of behavior the respondent has in mind. Some individuals tend, however, to systematically select responses that exaggerate the degree to which an organization exhibits the described behavior or has the indicated attribute, while others tend to consistently under- estimate. LIAM allows the analyst to combine the three sets of responses for each of the questions for an organization. The individuals responses are 'assigned numerical scores within LIAM and the computer produces an average score for each question. The three response sets for each organization are combined by the analyst (using Mapum) after all of the relevant organizations have been identified and examined using Query. Individuals should be chosen to analyze the organization(s) with which they are most familiar. Care should be taken, however, that the individual does not have such a close working relationship with the organization he is analyzing that some element of objectivity is not possible, and that he is not antagonistic towards the group in question. Individual respondents can also be assigned organizations to examine on a self-selecting basis, where each chooses the organization he feels best able to analyze. One respondent, moreover, can analyze several of the organizations identified as relevant to the conflict, provided he has dealt with those organizations in the past, and is familiar with the different aspects of organizational authority, roles, and power that are the subject of Query. If a subunit of an organization typically handles one type of instream flow conflict — such as dams or reclamation projects — that group of individuals should be involved in the analysis whenever that type of conflict arises. This is because these people are likely to be most familiar with the issues and organizations involved. (They are also in a better position to be able to identify those organizations which, though not yet directly involved in the 49 conflict, are likely to participate at some future point in time, as the negotiations progress or the conflict expands.) The choice of individual respondents is as important as the identification of relevant organizations because the questions contained in Query are designed to tap the knowledge individuals have about issues and organizations based on the past experiences. Once the organizations have been identified and three different respondents assigned to each, the respondents individually analyze the organi- zation(s) assigned to them using the questionnaire contained in Query. 5.3 PHASE I: QUERY: SURVEY OF AUTHORITIES Query begins by asking the respondent several preliminary questions including: the analyst's identity, a list of the various organizations to be included in the overall analysis, and the time and date of the analysis. The analyst is then asked to identify the specific organization being analyzed and to describe two major aspects of that organization's behavior: (1) the legal authority that organization has to participate in the conflict; and (2) the major issues and goals involved, from that organization's point of view. The answers to these serve two purposes in LIAM. First, having to describe a conflict in this manner helps a respondent to clarify facts and ideas regarding the issues, and to begin to look at the conflict from a different perspective. Second, as this is done for each of the organizations involved, the respondents (together) begin to build a foundation of legal information that will prove useful in later analyses and in developing an overall understanding of the conf 1 ict . It is here, also, that the respondent is asked to indicate the type and degree of statutory authority the organization has to participate in the conflict. Although the information for these questions may be generated prior to running Query (ideally, it should be gathered beforehand), each respondent needs to complete this answer for the organization he is analyzing. Thus, a survey needs to be made of the State and Federal laws surrounding the conflict. This may be done by one of the respondents, all of them individually, or at a group meeting prior to running Query. Since each organization will have its own view of the issues involved, it is important to discover and describe these in this section. This is because the respondents need to begin to perceive the conflict from other points of view, so that relevant and persuasive communication strategies can be develop- ed. Once these facets of the problem are described, the traditional section of the model is complete and the program automatically moves on to the behavioral elements of LIAM. The first of these helps the respondent determine the role types that will come into play. The computer stores the answers given in this first section, however, so the analyst can utilize the informa- tion in developing strategies for participating in the bargaining that will ensue. In addition, the responses taken in this first section, especially those relating to the legal context of the issue, may be useful in answering questions contained in other sections of Query. For example, some questions 50 ask. the respondent to indicate the degree of authority (as an element of power) an organization will bring into the conflict. Since the analyst has already determined this, the answer will likely come readily to mind; if it does not, the information is available for review using Looky. 5.4 PHASE II: QUERY: ROLE ANALYSIS The second set of questions in Query permits the respondent to describe the behavior patterns that are expected to emerge for each organization involved. A series of behavioral statements is presented, and the respondent is asked to identify the degree to which that statement applies to the organi- zation. These statements were developed from the four role types typically associated with organizations involved in resource issues (broker, arbitrator, advocate, and guardian). Each question attempts to measure the degree to which organizations are expected to exhibit each type of behavior. The answers are coded on a scale from one to five. The most extreme response choice is coded five, while the least extreme is coded one. No response choice was coded zero, however, since it is reasonable to assume that, by virtue of participating in the conflict, each organization will interact with the other organizations involved, at least minimally. Thus, some type of behavior pattern is expected for each. If no individual can be found having enough experience with an organization to comfortably attempt analysis, individuals outside the group conducting the analysis can be found to provide the necessary information. Each of the four role types has several "behaviors" associated with it, which together make up a distinct pattern. These expected behaviors were used as the basis for developing the question set for each of these roles. The role type "arbitrator" has been identified as having four behaviors: (1) preference for objectivity in decisionmaking; (2) whether or not it will preside over a formal decision process (as does a court); (3) the degree to which it is expected to solicit information from all sides to a dispute; and (4) whether or not it tends to have the authority to establish rules or promul- gate regulations in conflicts of the type being analyzed, or to determine the ultimate decision outcome. The broker has a different set of behaviors: (1) the degree to which it promotes a negotiated or consensual outcome; (2) whether or not it has physical or legal control of the resources involved; (3) the degree to which it prefers to consider or use economic, constituency, or political information in resource decisionmaking; and (4) whether or not it will attempt to see to it that all parties to a dispute are somewhat satisfied with the outcome. All of these elements of behavior, it should be noted, are related to preferences foi — and behavior associated with those preferences — one decision arena or the other (regulatory/distributive). Thus, these behavioral patterns stem from organizational preferences for procedure, rather than specific outcome. The other two roles, advocate and guardian, relate to goal preferences. An advocate organization prefers environmentally protective outcomes, and its behavior reflects this preference. Thus, the questions in Query attempt to measure the degree to which an advocate is expected to: (1) attempt to change traditional patterns of resource use and management, which considers economic 51 and political factors to be more salient than environmental ones; (2) show a preference for and use of scientific and technical information over economic or political facts; (3) promote environmental values; (4) demonstrate an ideological adherence to the mission of "environmental protection;" and (5) react to projects and proposals initiated by others. A guardian exhibits behaviors that are the mirror image of those of an advocate, and the questions in Query measure the degree to which this is the case. All of these role-related questions are presented to the respondent in random order by the Query program. This is done so that the respondent will be unable to anticipate questions and will have to think out the answer to each question prior to responding. Furthermore, each type of question has been phrased in three different ways; the computer randomly selects one of the three to measure each of the particular behavioral components. Thus, no two questionnaires will ever be exactly alike. The point is to force the respon- dent to carefully analyze each organization for each resource conflict, not just respond in a rote manner, based on familiarity with the questionnaire. The computer retains the answer for each role question, assigns it a numerical score, and combines the scores given for all of the questions associated with each role type. In this manner, a score for each role type is generated for each organization examined. The combined score for each role type is called an index, and these indices determine the specific behavioral patterns that organization is expected to exhibit, along with the degree to which it is expected to do so. This is done by separating the index scores (one for each role type) into two sets; one set of indices represents behaviors associated with preference for procedure (broker/arbitrator), while the other represents behaviors associated with preference for outcome (advocate/ guardian) . For each set of indices, the smaller index score is subtracted from the larger one along each of the two dimensions (broker from arbitrator, or vice versa; advocate from guardian, or vice versa). This is done to get closer to the element of degree. Since "ideal" role types are extremely rare — if not nonexistent — an organization that scores high on all measures of the broker role type is likely to also exhibit behavior commonly associated with arbi- trators, even if only to a minimal degree. Since an arbitrator is located at the opposite end of the broker-arbitrator continuum, however, this score must be subtracted from the score obtained on the broker index in order to determine just how extreme that organization's brokering behavior is apt to be. The difference between the two indices indicates that organization's location on a particular behavioral continuum — or, the degree to which that organization can be expected to exhibit that type of behavior. For example, if an organization scores 4, 3, 4, and 4 on the questions related to broker, these numbers are added by the computer and an average "broker" score is calculated by dividing that sum (15) by four. Thus the broker score for this organization is 3.7. Further, if the same organization receives 2.0 as its arbitrator score (calculated in the same fashion), then the computer subtracts 2.0 from 3.7, to arrive at a final broker index of 1.7. The same process is used to locate that organization on the second con- tinuum, associated with goal preferences. If the hypothetical organization in 52 the above example receives an advocate score of 1.0 and a guardian score of 3.0, the final score on this continuum would be 2.0, in the direction of guardian. Both indices, then, are used to define an organization's expected behavior pattern. An organization with these scores can be said to be 1.7 points toward the broker role type, and 2.0 points toward the guardian role type--or to be a "Broker-Guardian." The larger score (between the one behav- ioral dimension and the other), moreover, is that organization's dominant role type; in the above example, the dominant role type is that of broker. Figure 8 illustrates the location of this hypothetical organization on a "behavioral map." This map gives an analyst, once all the relevant organizations have been located on it, a pictorial representation of the distribution of the four role types for a given conflict. As previously mentioned, roles are not the only important predictive factors within LIAM. Power must also be examined. 5.5 PHASE III: QUERY: POWER ANALYSIS As was the case with roles, a series of power statements is presented, and the respondent is asked to indicate the degree to which the statement is applicable to that organization. These responses are also scored and stored in the computer's memory, in the same manner as the scores obtained for the various roles. The questions relating to power were created to tap all three elements of power that an organization may bring to bear in a conflict: resources, information or expertise, and support (Rourke 1976; Benveniste 1977; Clarke and McCool 1985). The first type of question asks the respondent to identify the degree to which an organization has at its disposal such typical organizational resources as: statutory authority to act or decide, physical or managerial control over resource systems, public support, personnel, fiscal resources, political support, and frequency and intensity of involvement in such issues. The first six factors give one an idea of the potential power an organiza- tion may have to influence the outcome, while the latter two indicate the likelihood that it will go all out to do so. The more often an organization has been involved in similar conflicts, the more experience it will have behind it; and the more intensely it feels about the outcome, the more aggressive will be its behavior in that regard (Rourke 1976; Clarke and McCool 1985). The second category of power-related questions concerns the type and quality of expertise with which an organization is typically identified; whether or not the organization is dependent on other groups for relevant scientific and technical information; as well as the respect the professionals within that group--and the group as a whole — have earned for themselves in a scientific field or academic discipline. Other factors measured here include the clarity of methods used and the degree to which the results obtained using those methods are understood by other participants and decisionmakers. Given the highly technical nature of instream flow issues, an organization in the business of generating information relevant to a particular issue or type of 53 ADVOCATE Distributive Politics BROKER 1.7 -I H f (Brol (G) 12. Sponsoring Organization Name and Address National ECOlOgy Center Division of Wildlife & Contaminant Research Fish and Wildlife Service U.S. Department of the Interior 13. Type of Report & Period Covered 14. IS. Supplementary Notes Washington, DC 20240 IS. Abstract (Limit: 200 words) The Legal-Institutional Analysis Model (LIAM) helps an analyst to: (1) develop a better understanding of the biases of the decisionmaking process through which resource decisions are typically made; (2) predict the behavioral patterns which are likely to emerge among organizations in a given conflict; (3) examine the power differentials among those .organizations; and (4) develop more effective negotiation strategies for the resolution of pinstream flow and other water resource conflicts. The model is based upon a synthesis of various social science research concepts, which were themselves developed as part of the continuing effort to understand and explain decisionmaking in the United States. The combined result of the organizational phenomena depicted in these research efforts is that organizational behavior is highly predictable. Prediction is incorporated into the LIAM using the concept of roles. The model allows the user to systematically analyze the political aspects of an agency's abiltiy to achieve its goals in a project negotiation. LIAM is especially useful for assessing an organization's position vis a vis the other agencies involved in a project. Using LIAM, a planner will then be better able to choose the most appropriate strategies for goal achievement, conflict resolution, and negotiation. 17. Document Analysis a. Descriptors Computer simulation Management methods Negotiations Organization theory b. ldantlfisrs/Op«n-Ended Terms Policy analysis c COSATI Fleld/GiDup ll. Availability Statement Release unlimited 19. Security Class (This Report) Unclassified 20. Security Class (This Page) Unclassified 21. No. of Pages 143 22. Price (SMANSI-Z39.18) See Instructions on Reverse OPTIONAL FORM 272 (4-77) (Formerly NTIS-35) Department of Commerce Take Pride in America Use Natural Resources Wisely ' — r;: — \ KIKHAWII.DIIf'E SF.RVICf-: DEPARTMENT OF THE INTERIOR U.S. FISH AND WILDLIFE SERVICE As the Nation's principal conservation agency, the Department of the Interior has respon- sibility for most of our nationally owned public lands and natural resources. This includes fostering the wisest use of our land and water resources, protecting our fish and wildlife, preserving th»environmental and cultural values of our national parks and historical places, and providing for the enjoyment of life through outdoor recreation. The Department as- sesses our energy and mineral resources and works to assure that their development is in the best interests of all our people. The Department also has a major responsibility for American Indian reservation communities and for people who live in island territories under U.S. administration. s