Now Entering Litigation: The Cone of Silence Descends

I would just like to restate that I believe strongly in “telling the truth and obeying the law.” The discussion below is about the pros and cons of resolving natural resource disputes through the courts.

Awhile back, I had some questions about what the litigants on the Colt Summit project felt needed to be changed about the project, so we could understand their reasoning better.

Matthew suggested here that I write the litigants directly, which I did. Here’s the series of emails.

Here’s my original note:

Dear Alliance for the Wild Rockies and Friends of the Wild Swan,

I administer a blog called New Century of Forest Planning. We have
been following the litigation on the Colt Summit Timber Sale with some
interest. We would be interested in finding out exactly what changes
could be made to the sale such that you would support it enough not to
litigate. Could you explain what activities you want to stop in what
units and why?

Thank you!

Sharon Friedman

Here’s his response:

Dear Ms. Friedman,

Thank you for contacting me.

Since you are a Forest Service employee and Forest Service attorneys have gotten upset with us in the past for talking to Forest Service employees about pending litigation, we need to first ask our attorney to contact your attorney to ask if it is alright to negotiate with you.

We do think is is odd that the Forest Service was non-responsive to our comments and appeal and yet we are supposed to believe that if we debate this on a blog site it will bring changes to the project.

Sincerely,
Michael Garrity
Executive Director
Alliance for the Wild Rockies

Mike,

The NCFP blog is something I do in my spare time and not related to my
“day job”. Therefore, any discussion with FS lawyers would be
inappropriate.

I wasn’t implying that blogging will bring changes to the project,
but it would bring understanding to our readers of what your position
is in terms of “specific activities on the ground that you disagree
with.” The purpose of our blog is to help understand and clarify why
people disagree about resource issues (in a safe and respectful
environment).

We seek to understand.

Sharon

Dear Sharon,

You are still a Forest Service employee so before I discuss the case with you I would like your lawyers to OK it first so they don’t get made at me later. They were very clear in the past that I was not to discuss any pending litigation with Forest Service employees. They didn’t make any distinction about after hours conversations. If you would like to learn more about the case without talking to me I sure the Forest Service attorneys would be happy to discuss it with you.
Sincerely,
Mike Garrity

This all makes sense to me. The FS and AWR are in litigation now, so only lawyers should be talking and only ones involved in the case. But I still think that we need to be upfront about the disadvantages of going from an open public dialogue to something else. Again, I think a required period of mediation, open to the public to observe, would be an improvement. I think we would all learn something about the different approaches people take, and different beliefs, and interpretation of facts.

I’d also like to clarify that I see my role on this blog similar to my membership in SAF and, in the past, when I was in leadership in that group. I could represent the SAF at some times, the FS at other times- as long as I was clear with others whom I was representing. If there were potential conflicts of interest, I would recuse myself. I am not blaming Mike here for not making the same distinction; it is a natural consequence of entering Litigation World. But, again, when we may need a broad diversity of viewpoints and ideas to come to a mutually agreeable conclusion, I wonder if under the “cone of silence” is the best place for that to happen.

15 Comments

  1. I am retired now, but when working as public affairs officer for national forests we were often faced with the same challenge. From a strictly legal point of view, some of our OGC lawyers recommended FS communication associated with public involvement on projects should almost always be in writing, especially if there was possibility of litigation. There was always the tension between encouraging free and open dialogue among the various interests versus preparing the most defensible public record for the agency in case of litigation.

    Of course there were also a few OGC folks who saw the advantages of practicing a type of “preventive law” that stressed open two way communication and building long term relationships among agency staff and the various interests including potential litigants. At many levels we saw notable successes based on collaboration and interest-based discussions among previously competing parties.

    These successes, while stopping short of shared decision making, provided clear rules of engagement and meaningful ongoing dialogue on alternatives and effects and mutual exploration of potential win-win solutions.

    Also critical to long term success was a process of vetting possible collaborative solutions with the larger community of interests and making sure that these collaborative efforts were integrated into the broader NEPA decision making and disclosure processes. This helped ensure legal requirements were met. This also helped prevent the perception by the broader public that a select few individuals involved in discussions had undue influence over agency decision making.

    Public support is absolutely essential to the long term success of the national forest system. Meaningful, legally defensible collaboration, in my view, has to remain a vital component of how the Forest Service goes about making NFMA and NEPA decisions. This is not a trivial or easy task.

  2. Howdy,

    You might consider requesting a copy of the complaint filed by AWR so it can be posted here(f it hasn’t been already). Its a matter of public record so it wouldn’t be an issue for Mike to provide this to you. Complaints are typically a succinct way to understand the legal arguments and specific remedies requested. It could be quite educational for folks to see one of these, and if folks get really interested, they ought to follow the case and read through the motions for summary judgement once they are submitted. I know those posting here may already know this, but just as an additional note, most of the time, there is no dispute over the facts concerning what the agency did or did not do in a given case. As such, the whole issue comes down to the court’s interpretation of whether the agency’s actions were or were not a violation of the law. Its a lot less “sexy” than the “Nancy Grace” version of legal analysis, but its how things work in this context.

  3. OK, here’s the link to the complaint, thanks to Matthew.

    Here’s the link to my observations about the complaint in a previous thread.

    I understand the logic of the FWS concurrence letter posted here. I don’t really understand how these statements crosswalk with the assertions in the complaint about impact to bear and lynx. Perhaps it’s the difference between “resource specialist (scientist?)” lingo and lawyer lingo.

    • In response to your question, Sharon, its important to remember that the complaint merely lays out the claims of the plaintiff in a broad sense. In any complaint filed, there are a number of “blanket assertions” made that are not supported by additional evidence, but this is just a normal part of the process. In the Colt Summit case, the Plaintiffs are essentially challenging the adequacy of the FS analysis in the BA they provided the FWS for review (among other claims). If you were to follow the case, you would likely find that the OGC attorneys will not challenge many of the factual assertions in the complaint (i.e. the location of the project, management actions included in the project, the statement of Forest Plan standards, etc). The real issue is the sufficiency of the analysis of project effects. That is, whether there was sufficient quality and quantity of information available for the agency to make the “no adverse effect” determination. The agency clearly feels the information was sufficient, and the Plaintiffs clearly feel it was not. The evidence or lack of evidence to substantiate each side’s perspective will come later, usually in motions to enjoin the agency from further action (and in the agency’s response) or in summary judgement briefs. This is why I think its important to continue to follow the case through, and follow the arguments as they play out.

      I know the FS wildlife biologist on this project personally and I believe he is a good man with all the best intentions in his work. he loves his work and he values wildlife deeply. My suspicion is that if one were able to ask him or most other “ologists” in the FS whether they could use additional funding (or some other means of increasing their capacity) to further improve the data upon which they are making their best professional “judgment call” , they would of course agree. Yet, the reality is that they rarely have all the resources they would ideally like to have and, like most everyone in life, are left to do their best with what they do have.

      The real question in a litigation context, therefore is whether and to what extent the court is to look at legal requirements in a vacuum, apart from pragmatic considerations, or whether the court will interpret into the legal standards a consideration of whether the agency is doing the best it can, given the financial and more systemic constraints with which it must grapple.

      I agree with Mathew that there is a very important role that our courts can play, at least in the short term. Historically, for instance, courts have played a very important role in pointing out significant problems with our social systems. These decisions have led to some of the most important social movements in our country’s history (e.g. the Civil Rights Movement). Personally, I can see good arguments for both the pragmatic and literal approach to interpreting law, and how either approach can really help us understand where the broader system has grown deficient in serving our social interests. Whether the Colt Summit court interprets the law literally or with a more pragmatic lens, however, the real issues that need to be addressed are those that stem from the disconnect between the broader, unsustainable set of expectations and demands placed upon the Forest Service, and the level of care and consideration that ought to be afforded to the environmental impacts of agency actions. It would be wonderful to see a decision from the court that helps spell out these systemic issues in more definitive terms. Thus far, however, I have not seen a court brave enough to “go there”.

      • Mike, Excellent thoughts, especially that final paragraph. I greatly appreciate your contributions to these discussions, as you’re likely the only person here who has done ecosystem defense/legal work with AWR, and also served as a environmental liaison on the Lolo National Forest.

        • It’s interesting that Matthew and I, who often disagree, agree strongly on the value of your contributions. I like the idea of following this particular case. It’s easy to say “laws are important and they must always be followed”; but our world is more about “what about 500 acres of commercial thinning actually threatens the grizzly bear?” If the trees have a greater chance of staying alive, don’t bears like being in living forests? If they prefer dead trees, aren’t there enough around? If it’s in the WUI and bears are better off away from roads and people, are they even around to be influenced by vegetation management practices?”

          Talking about these things in a public forum, to me would be good science, good education, and good governance. Staying in the frame of “do we need more paragraphs on cumulative effects?” (what you call “the sufficiency of the analysis” ) not so much. One thing I noticed when I observed the 10th circuit court of appeals on the 2001 Roadless Rule was that much of the discussion about environmental effects took place at a very superficial level.. bits of information covered by layers of legalese to the extent that the real world was, in some way, unrecognizable. Here’s a link to that post.

          I also wonder if there is a way to allow the stakeholders involved in the development of the proposal into the settlement deliberations. Would this require them to hire their own lawyers?

          • Mathew and Sharon, I’m glad you are finding my contributions valuable. I’ve enjoyed joining back into this discussion after delving into other endeavors (i.e. PhD and research) for a few years. I’ve been following more from a distance but am happy to be able to engage with folks who care deeply about our national forests and national forest management once again.

            There is indeed a lot of rich discussion to be had once we cut through the rhetoric (which is often driven by a lack of trust) and move toward a dialogue around what is really motivating us all to “do what we do” in the first place. Personally, I simply love public lands and want only what is best for the land itself whenever and wherever possible. My sense is that I’m not alone in this regard (not by a long shot), that there is at least some degree of agreement that the present system in which we are all participating is not ideal, and that there might even be some “low hanging fruit” if we were able to maintain a dialogue focused on our aspirations (many of which we may hold in common). But I also understand the complexities of having this discussion while simultaneously continuing to participate in the system we have.

            For the moment, I’d just like to respond to Sharon’s last question pertaining to stakeholders’ participation in lawsuits. There is a provision that allows for amicus curiae (friend of the court) briefs to be filed by third parties with a significant vested interest in the outcome of the case at had. It’s been a while since I’ve looked at the rules on this closely, but my sense is that amicus curiae briefs are typically allowed when the third party has some financial stake in the outcome only. Also, I don’t believe there would be a requirement that the third party hire an attorney, but it would be very difficult for a lay person to effectively participate in the process. If anyone else knows the rules on this better, please chime in. Its an interesting question.

  4. It’s important to recognize that lawsuits sometimes have underlying motivations that are different than the overt legal claims. Sometimes there is not a law against stupidity (a euphemisms for the thing that actually motivates the lawsuit), but there is a NEPA, NFMA, or ESA claim or other law that allows litigants to stop a project, or slow a project and allow time for other forms of persuasion to work, and get a result that partially addresses the real concern.

    Obviously, this applies equally to the increasingly common NEPA lawsuits filed by extractive industries who don’t usually care about the environment or public participation for that matter..

    • Tree- I totally agree with you about the underlying motivations. But when people claim that they “are only getting the FS to follow the law” and have real underlying motivations, I think the other people can sense it, and that leads to questions about whether they are acting in good faith.

      That’s exactly why I think our system doesn’t work as well as it could.. the real concerns are finally addressed with the FS and DOJ under the “cone of silence” instead of out in the open with a larger group at the table. It’s about using litigation as a tool to promote an agenda, as is openly claimed in the Bevington book. It is an good tool in certain situations, but I think people have the right to question it, especially the folks (taxpayers) who are footing the bill.

      Also you say there are “increasingly common NEPA lawsuits filed by extractive industries” could you give some examples? We don’t have them in my neck of the woods.

    • It is also important to remember that some groups still publicly desire an end to timber sales from public forests. With that ultimate goal in mind, their litigation tactics and reasonings become clearer. Unfortunately, the Forest Service sometimes pretends that these eco-groups are not watching, and puts up projects that cannot stand up in court. Ditto for Congressmen who think that the serial litigators aren’t watching them, too.

      “Other forms of persuasion” includes dangerous road blockades, tree-sits and such, too. It is all too easy to find an “Ologist” somewhere, sometimes even former and current employees, who will offer their opinions that counter the Forest Service. Decisions must be based on site-specific conditions but, as Sharon has said elsewhere, they often talk more about statutes and documents, instead of data, maps and the balance of short and long term impacts and benefits.

  5. Yes, on September 25, about 18 days ago, I posted a PDF copy of the actual lawsuit complaint, with the suggestion that it “may help answer many of the questions you have posed here.” I guess “Now Entering Litigation: The Cone of Silence Descends” is just more dramatic and exciting than reading some complaint.

    Round n Round we go!

    • Matthew, I read the complaint and I can’t see, to my resource specialist brain, exactly where it counters the claims made in the FWS letter about impacts.Maybe someone could interpret the legalese and tease out the claims that describe what is bad about the project, and not so much what is bad about the analysis.

  6. I have a question about grizzly bear habitat. Since the historical range of the grizzly bear is more than half of the lower 48 states, how does one decide which habitats the bears prefer? Or, which habitats they can still survive in? How does any type of thinning project impact the bears, specifically? Not only do humans have to learn to live with bears, bears also have to learn to live with humans (who thin forests). Have the bears suddenly become “sensitive” to changes in habitat, no longer able to adapt to habitats they once thrived in?

    I admit I don’t know much about grizzly bears. My style of photography wants to take me to places where bears live but, I’m not educated enough about their lifestyles and habits.

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