Agreeing Not to Disagree: Preparing MOAs

1. Agreeing Not to Disagree:Preparing MOAs Addressing Adverse Effects in a Somewhat Civilized Manner

2. Why do we need a Memorandum of Agreement? • The days of “gentlemen’s (or gentleperson’s) agreement” is long gone! • The MOA is a legally binding document prepared by the consulting parties to mitigate adverse effects. • The MOA provides a specific formula for addressing effects, providing the who, how, where, and when.

3. Dr. Robert’s and Dr. King’s Helpful Hints for Writing an MOA • Make the document clear, concise, and readable; avoid vague terms and too much jargon—you don’t know who will be interpreting this after you get that dream job in Timbuktu. • Don’t rely on standard language (the problem with using “boilerplate”); say what needs to be said.

4. Hints continued . . . • Make explicit all details about the undertaking, including all activities and specific dates. • Make the flow of the document logical; don’t skip from topic to topic. • No “side agreements”—everything that has been agreed to by the consulting parties should be in the MOA.

5. Even further hints. . . • Think about the future. Write your MOA as if you expected every consulting party involved in its development will be killed in a plane crash after it is signed! • Include all statutory and regulatory authorities (cite the specific laws by section, subsection, etc.). • Never assume that something will be done because it is proper—specify everything.

6. Yes, yes, I know. . . • Define terms, and clarify acronyms (Finding of No Significant Impact = FONSI). • Do not use words like “avoid,” “may,” “should,” “if feasible,” or “if funds permit.” • Allow for dispute resolution. • Always provide means for monitoring performance. • Always add a “sunset clause.”

7. MOA Standard Format • Identification of undertaking, consulting parties, and statutory authorities. • Stipulations: impact avoidance, minimizing impacts, rectifying impacts, eliminating impacts, marketing, moving, storing collections, disposition of human remains, compensating for impacts. • Administrative stipulations (monitoring, reports, qualifications, sunsetting, information control, etc.). • Signature page for signatories and concurring parties.