Confounding Collaboration: The Federal Advisory Committee Act's Impact on BLM Resource Advisory Councils

Abstract

Over the past several decades, agencies that govern natural resources have been gradually incorporating collaboration into their decision-making processes. One of the tools agencies use to foster collaboration is the advisory council. The Federal Advisory Committee Act (FACA) of 1972 governs the administration and operation of most advisory councils in the federal government. Congress enacted FACA to address the closed-door, biased, redundant, and industry-captured councils that characterized the advisory council system prior to 1972. FACA requires a host of administrative requirements aimed at ensuring advisory committees are balanced in membership, transparent and open to the public, advisory only, uniform in operation and administration, efficient, and accountable. Some scholars feel, however, that FACA and its regulations confound collaboration. FACA’s procedural and administrative requirements, its inherent ambiguity, and its prescribed dual interpretations are thought to inhibit the functioning of advisory councils and frustrate their collaborative efforts. The Bureau of Land Management (BLM) established the Resource Advisory Councils (RACs) in 1995 as a means for BLM managers to collaboratively manage public lands. The RACs are chartered under FACA. Using a semi-structured telephone interview protocol, the BLM employees who work closest with the RACs were interviewed for their perceptions of FACA’s impacts on the RACs’ ability to function effectively and be collaborative. Impacts on the RAC process were found to be much more complex than was expected or that the literature on FACA suggests. FACA is perceived to be both beneficial and detrimental to the RACs’ ability to function effectively and be collaborative. Nonetheless, while some perceive problems with FACA itself and with the BLM’s interpretation and application of the Act, others are able to avoid some of FACA’s detrimental impacts. Those who take a more philosophical and less bureaucratic perspective to FACA, who perceive that common sense is the overarching rule, tend to follow FACA’s intent rather than its procedural prescriptions when a conflict between the two arise. In addition to FACA’s specific requirements, aspects of the BLM’s interpretation of FACA and several of the BLM’s policies regarding the RACs are also perceived to be detrimental to the RAC process. Many perceive that it is possible for the BLM to uphold FACA’s core principles without imposing its limiting constraints.