In this series of posts, I’m going to talk about what it was like for me to be a Forest Service employee involved in litigation, and how that experience leads me to this claim: that for many, if not most, projects and land management decisions, making decisions via the court system is suboptimal.
I’m not saying litigation of federal decisions is a bad thing. Separation of powers is something I think is a good idea. I don’t think people who do it to affect policies are bad people. People all have policy goals and use different tools to achieve them. If you’re a politician you use legislation, if a lawyer you use law, if a scientist you use science. I just don’t think the system works as well as it could for land management decisions.
A few weeks ago, I was in Montana giving a talk to a group of folks interested in collaborating with the Forest Service and veered onto the topic of “how FS litigation works.” Some were surprised and a bit horrified/depressed when I said “during settlement, often no one is in the room (or on the phone) who has read the public comment.” They didn’t realize that after the Forest Service goes through one or more public comment processes, using citizens’ time and money as well as taxpayers’, when the deal is being done, no one in the room or on the phone may have actually seen it. I think that this is important because I think that knowing what people think (even if they disagree, and of course they do) is key to making good federal decisions. At least in a “response to comments,” people get a chance to understand the agency’s rationale for not picking their approach. Not that “it wasn’t considered because no one making the decision was aware of it.”
Sometimes these settlements set precedents that are bad policy (in mine and others’ view). They settled the particular case, for example, but the next time a similar project came through, our attorneys said “you have to do this, or can’t do that, because the case law says so.” Not because a statute (voted on by elected representatives) or regulations (agreed to by the executive branch, selected by the voted for President, and including required public comment), said so. Of course, DOJ is also part of the executive branch, but their role in establishing policy, instead of the involved agencies, is contested.
But don’t believe me, I was just a humble Planning Director, with litigation being one of our staff’s multiple and variegated responsibilities. Here is what Chief Jack Ward Thomas had to say:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”
Again, I am not ascribing bad motives to anyone. The system is probably such that DOJ needs to close cases to meet their performance metrics. Whoever designed the performance elements didn’t make them apparently a joint maximization function among the affected agencies. Also, in my experience, settlements can develop a head of steam and it’s hard for someone to say “wait, let’s think about the potential impacts of this on (related projects)”.
Here’s a more gentle (I was still working then) post on the same subject from 2011.