Planning MPAs and creating stable agreements: Lessons learned from California’s Marine Life Protection Act process

Editor’s note: Scott McCreary served as lead facilitator for three of the four main regional planning processes implemented under California’s Marine Life Protection Act (MLPA). McCreary is managing principal at CONCUR, Inc., a firm providing expertise and coaching to clients in strategic planning, joint fact finding, and facilitation of agreements on complex environmental and natural resources issues (www.concurinc.com).

By Scott McCreary

MPA planning takes many forms. Some are highly technocratic and depend on command-and-control regulation to be implemented. Others are more “stakeholder-driven” but depend on an ultimate decision-making authority. Still others could be fully consensus-seeking.

Emerging practice suggests that MPAs should be planned in consultation with the full range of affected stakeholders in a region. But exactly how should that consultative planning process be structured and how can it be most successful? This article argues that without proper process design, the outcomes that result from such planning are not always stable.

What does it mean for an agreement to be “stable”? Based on accepted and well-documented best practices in negotiation process design, a stable agreement is one in which (1) significant cross-interest agreements are made, (2) consensus or near-consensus is reached, (3) objective scientific criteria are met, (4) the process is widely viewed as fair, and (5) the agreement is widely supported.

California’s Marine Life Protection Act (MLPA) Initiative was established to address declining fish stocks and habitat loss off the California coast. Involving a region-by-region planning process that was implemented over several years last decade, the initiative resulted in a new network of more than 100 MPAs throughout the state’s waters (https://oct.to/ZZg).

We at CONCUR have just published an article that details the challenges encountered in the stakeholder process to design MPAs in one region of the MLPA Initiative, the South Coast. Our article, “Creating Stable Agreements in Marine Policy: Learning from the California South Coast MLPA Initiative” (in Negotiation Journal, published by the Program on Negotiation at Harvard Law School) is available at https://oct.to/ZZM.

The article draws insights from the conflict resolution field on how to improve the design and management of these multi-stakeholder processes to ensure a stable outcome. It also draws on the first-hand experience that members of the authorship team had with the South Coast process, including as lead facilitator, stakeholder negotiator, and survey analyst, respectively.

Good process with good outcome, but not a great process with great outcome

Dozens of articles have been published on the California Marine Life Protection Act Initiative and, overwhelmingly, authors herald its successes. (Indeed, I co-authored one such article after the largely successful North Central Coast regional process – https://oct.to/ZZQ.) In contrast, our article on the South Coast MLPA regional process examines it from the field of conflict resolution, and finds that the process was good – but not great.

In our view, while the South Coast stakeholder process had many positive outcomes, it failed to achieve a stable agreement. For example, near-consensus was not reached, and our survey afterward demonstrated that stakeholders do not now view the process as fair. We assert that the pitfalls of the South Coast stakeholder process could have been avoided had the management and facilitation team consistently considered and applied best practices in dispute resolution.

In our article, we highlight four major problematic process design choices that encouraged stakeholders to engage in positional bargaining (i.e., holding to a fixed idea), discouraged them from developing cross-interest agreements, and ultimately led to a distrust of process legitimacy. We then offer recommendations for future stakeholder-driven marine planning efforts:

• Ensure equal representation on the stakeholder group.
• Provide up-front training in principled negotiation for stakeholder representatives.
• Create stronger incentives for negotiation toward consensus.
• Consistently articulate and enforce strong decision rules.
• Integrate the facilitation team in all policy panel process design choices.

We hope that this deeper dive into the California Marine Life Protection Act process design will be used to improve future marine planning processes around the globe.

Creating a stable agreement

Is there such a thing as a perfectly stable agreement from a stakeholder process? Or will there always be some degree of divergence and imperfection – particularly in complex, urban environments like the South Coast process with high stakes and many competing stakeholders?

In CONCUR’s professional practice over the past two decades, we have facilitated several dozen projects that reached unanimous consensus among all stakeholding parties. And on the question of stability, the most pressing consideration is, “What is the mechanism for translating informally negotiated agreements into binding agreements?”

In the case of the MLPA Initiative, that mechanism was regulations adopted by the California Fish and Game Commission, but with an intermediate and formative stop at the Blue Ribbon Task Force (BRTF) – a policy panel that held power to “hybridize” and revise proposals forwarded by stakeholders. The BRTF certainly played a vital policy integration role, serving as a political buffer and doing a great deal of heavy lifting for the Fish and Game Commission. But it also distanced the stakeholders from the ultimate implementing mechanism.

Granted, some thoughtful observers have suggested that without the BRTF, the MLPA process may not have delivered final regulations, as the stakeholder processes did not always yield consensus or near-consensus. But in the MLPA Initiative, we actually never tested a process model where a stakeholder body was fully incentivized to negotiate to a single broad-based consensus. Such an incentive would likely have hinged a strong commitment that if the stakeholders reached consensus, their recommended plan would move directly to rulemaking. (This is precisely the model used by the US National Marine Fisheries Service with its Take Reduction Team process, which works with fisheries to reduce bycatch of marine mammals – https://oct.to/ZZd.)

Evolution in MPA planning over the years

Without question, the field of integrated coastal zone management has moved a long way from early command-and-control based models of top-down regulation to much more participatory models. Beyond participation, there are increasing examples of the use of collaborative planning models that convey at least some stakeholder ownership to co-develop MPA proposals.

Designers of future MPA planning efforts would be wise to invest in an up-front component of strategic planning that would, among other topics, investigate:

• Cultural norms around expectations for the extent of consensus in decision-making;
• Opportunities and strategies for incentivizing negotiation of consensus agreements;
• Prevailing models of collaborative planning;
• Potential compensatory mechanisms to offset financial losses; and
• Clarity of decision rules for drafting, finalizing, and adopting MPA proposals.

Finally I would recommend that conveners of MPA planning arrange to teach principles in mutual gains bargaining – the art and science of reaching mutual gains – along with standard planning skills and technical skills such as GIS analysis. The upside potential is considerable, and could set a good precedent to leverage progress on natural resource and planning issues beyond marine spatial planning.

For more information:

Scott McCreary, CONCUR, Inc., Berkeley, California, US. Email: scott@concurinc.net

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