The State of the States in Environmental Dispute Resolution:
KENTUCKY

Status:
Kentucky’s formal environmental mediation program was instituted in 1994 to address a backlog of over one thousand administrative hearing cases involving the Kentucky Natural Resources and Environmental Protection Cabinet (NREPC). This program uses an independent Office of Administrative Hearings (OAH) to provide mediation of cases. Popular with both the regulated community and environmentalists, the concept was endorsed by the governor in his 1995 gubernatorial campaign. There are now plans to expand the mediation program to include disputes not leading to formal administrative hearings. In addition, the Kentucky Department of Fish and Wildlife Resources (DFWR) informally uses convening and mediation to negotiate regulatory rules. The focus of this program is to address issues and rulemaking conflicts before they become formal conflicts.

Legal Authority:
KY. REV. STAT. ANN. §§ 417.045–.240 (Michie 1992 & Supp. 1996) (codifying the Kentucky Uniform Arbitration Act, which authorizes the use of arbitration agreements and establishes law governing the validity of and procedure used in arbitrations); 400 KY. ADMIN. REGS. 1:090(7) (1998) (establishing a nonbinding mediation procedure to which any administrative environmental dispute may be referred by the administrative hearing officer assigned to the dispute).

Contact Information:
     Albert Harberson
     Office of Administrative Hearings
     Kentucky Natural Resources and Environmental Protection Cabinet
     35 Fountain Pl.
     Frankfort, KY 40601
     Phone: (502) 564-7312
     Fax: (502) 564-4973

Program Summary

Natural Resources and Environmental Protection Cabinet:
The NREPC’s mediation program began in 1994 in response to a backlog of over one thousand administrative hearing cases involving the NREPC and a perception (among both the public and the regulated community) that the NREPC was immersed in bureaucratic red tape. The mediation program was created in the OAH and hearing officers were given the authority to refer administrative disputes to "nonbinding mediation." Environmental mediations are first scheduled for three-hour conferences, although cases often last longer. The average mediation lasts six hours—compared with several days or weeks for formal hearings. Successes in the program include the fact that eighty percent of the disputes referred to mediation have been resolved and that relationships between the regulated community and the NREPC have improved. (Indeed, the regulated community often requests mediation.) Furthermore, the public appreciates the less formal approach of the mediation program. To date, approximately two hundred cases have been mediated.

Department of Fish and Wildlife Resources:
Rather than using a formal mediation program, the DFWR informally uses public involvement, including convening and mediation, in developing regulations and making wildlife management decisions where there is potential for conflict. The focus of this effort is to address latent or emerging issues before they become conflicts. The program started with a strategic planning effort. The director of strategic planning was interested in involving the public in the rulemaking process. So far, the process has been utilized in a few instances. One instance was a conflict involving rulemaking surrounding mussel harvesting; another involved a local dispute over the use of a hunting club’s ground. Cases are selected for the program on an informal case-by-case basis where the goal is to take an emerging issue before it escalates up the spiral of conflict. High-level decisionmakers within the DFWR support this program because when all parties have input on and agree about proposed regulations, the odds of successful implementation increase. The DFWR sets the biological limits, then the interested parties, including the DFWR, develop ecologically and socially responsible recommendations within these limits.

• Mediation seems to work best in complex, multiparty cases because there is more room for multiple innovative solutions. Mediation often does not work as well in fairly simple single-issue cases, particularly cases where the only issue is the amount of civil penalties.
• A significant challenge in developing a mediation program was convincing the attorneys and high level staff, as well as outside parties, that mediation is an effective way of resolving disputes.
• All parties need to be included in negotiation or mediation. People cannot be denied input.
• At a first meeting, it often helps to look first at people’s interests. People are often surprised to see how much they have in common.

People

Lynn Garrison, Kentucky Department of Fish and Wildlife Resources, 1 Game Farm Rd., Frankfort, KY 40601, Phone: (502) 564-4338, Fax: (502) 564-6508.

Offices

In addition to the state-led mediation programs, the University of Kentucky, College of Agriculture runs a Natural Resources Leadership Institute which works to develop leadership and negotiation skills among natural resource professionals to help them manage public participation and problem-solving issues. Information on this program is available from Jennifer Thompson, Phone: (606) 257-2943, Fax: (606) 323-1031, E-mail: jthompso@ca.uky.edu, or at the Natural Resources Leadership Institute Website: http://www.uky.edu/Agriculture/ AgriculturalEconomics/nrlibroc.html

Indiana Conflict Resolution Institute
Last updated: June 1999
Comments: ICRI Administrator
Copyright 1999 - Indiana University, Bloomington