Whitebark Lawsuit II

Matthew posted this link last week about the whitebark ESA lawsuit.

Now, I asked the question “why?” and “what conditions does Mr. Garrity want changed”?

Matthew replied that I need to read the lawsuit. I don’t think that’s quite fair, as when I am supporting the FS point of view, I don’t think I’ve ever asked anyone to “read the EIS.” The fact is, if you are supporting something, I think it it incumbent on the supporter to pick out the pieces of the document that make the argument. Of course, folks litigating are not required to do public outreach to get public understanding, acceptance and support for their actions; and neither can the USG really once a topic has fallen under the litigation Cone of Silence (link here.. notice that that post was also about trying to figure out “what are the actions that you want changed?” with the very same Mr. Garrity). So I guess it falls upon us volunteers to have this kind of public discussion. I do believe that there must be a better way.

So I did not read the whole thing, because I tend to find the snarky and self-righteous vibe of the writing of many lawsuits to be sandpaper to my soul, but I did find this tidbit:

An actual controversy exists between Plaintiffs and Defendants. Plaintiffs’ staff, members, and supporters derive scientific, aesthetic, and spiritual benefits from whitebark pine’s continued existence in the wild and from the ecosystems upon which it depends. They use and enjoy lands throughout the range of whitebark pine, including regular and consistent use and enjoyment
of federal public lands in the Northern Rockies, including National Parks and National Forests in Montana, Idaho, and Wyoming. The majority of whitebark pine in the U.S. occurs on National Forest and National Park lands. Plaintiff Alliance for the Wild Rockies is already involved in other federal
litigation in this Court to protect whitebark pine on National Forest lands in Montana. See e.g. Alliance for the Wild Rockies v Krueger, CV-12-150- DLC (D. Mont.) (Challenging the Cabin Gulch Project on Montana’s Helena National Forest, in part for approving clearcutting of hundreds of acres of
whitebark pine habitat without first considering the best available science on whitebark pine habitat management). Plaintiffs’ staff, members, and supporters use whitebark pine habitat for hiking, fishing, hunting, camping, photographing scenery and wildlife, and engaging in other vocational, scientific, spiritual, and recreational activities. Plaintiffs’ staff, members, and supporters observe, study, and enjoy whitebark pine, and intend to continue to observe, study, and enjoy whitebark pine frequently and on an ongoing basis in the future.

Based on that, it sounds like the problem is with clearcutting for WBP. Since last week I was able to contact my scientific colleagues who work on WBP. Here is a quote:

I’m not aware of any clearcutting with WBP. We certainly don’t do it here and I haven’t heard about any in other regions. We DO cut in WBP stands, but the intent is to remove competing vegetation, mostly conifers. There’s a chance that a dead or very sick WBP may be cut in order to provide growing room for a younger, healthier tree, but clearcutting WBP makes no sense.

This made me curious about the Cabin Gulch project.
Here is what I found by searching for WBP in the ROD here:

Regeneration harvests on approximately 417 acres of which approximately 286 acres target
whitebark pine establishment. These harvests will be done where a substantial portion of the
overstory was lodgepole pine that has been killed by mountain pine beetle and the establishment
of regeneration is desired. This harvest activity will result in 2-aged, or even-aged stands
depending on how many healthy trees are available for retention, primarily Douglas-fir. In these
treatments, the existing stand is largely replaced and the resulting stand is dominated by
regeneration. Lodgepole pine, Douglas-fir, and/or whitebark pine natural regeneration is expected
depending on the unit. Diameters cut would generally range from 7 – 16” DBH and live trees of
other species would be retained to provide seed, structure and snag recruitment.

So it sounds like they are taking off dead lodgepole to give WPB regeneration a chance to grow? That sounds different than “clearcutting hundreds of acres of wpb habitat”? Is it better to let the dead lodgepoles fall? Could that result in jackstrawed lpp which would then cause fires to burn hotter and turn the WBP regen into crispy critters?

When folks talk about the “best science” it reminds me that all of us can go out to a site and look at WBP, fires, fuel loadings and treatments. We don’t need a Large Hadron collider and billions of bucks to observe this phenomenon.

The interesting thing about the WPB issue is that we all want the same thing, putatively, to protect WBP as much as is possible that would be effective under changing climate conditions. No sawmills run off WBP, and it’s often in roadless or wilderness areas, or national parks. So the rationale seems more mysterious than most lawsuits.

Matthew also said in his comment here:

Furthermore, in the section of its July 2011 decision where the USFWS lists the “high Priority Listing Actions” that will receive funding for listing in the FY 2010 or 2011 – instead of whitebark pine – the USFWS lists 39 species with Listing Priority Numbers between 3 and 12. In other words, species with LPN between 3 and 12 do not face greater threats than whitebark pine, which has a LPN of 2.

The lawsuit continues to go into lots of details about where the agency is currently spending it’s money and time and how 40% of the funding in FY 2010/11 actually went to species that have a lower priority than whitebark pine. Again, I’d encourage people to read the actual lawsuit, view all the info and then ask questions. Because having me simply re-type what’s in the lawsuit here isn’t really a homework assignment I should be doing for you. Thanks.

This part sounds to me like management of FWS and where they put their priorities and funding, and why. Again, it seems like reasonable people could disagree about any federal agency, and where it puts its priorities. I would prefer to see our federal agencies managed by folks with recommendations from a public FACA committee rather than by a few lawyers in a non-public forum, settling a lawsuit.

9 thoughts on “Whitebark Lawsuit II”

  1. Sharon wrote: “Matthew posted this link last week about the whitebark ESA lawsuit. Now, I asked the question “why?” and “what conditions does Mr. Garrity want changed”? Matthew replied that I need to read the lawsuit. I don’t think that’s quite fair, as when I am supporting the FS point of view, I don’t think I’ve ever asked anyone to “read the EIS.””

    I hate to always harp on your approach and choice of words Sharon, but I “don’t think it’s quite fair” for you to infer here that all I replied was you “need to read the lawsuit.”

    Below I will re-paste my very detailed reply to your question. As anyone can see, I went into quite a few details, and I also offered more details in the previous comment here: https://ncfp.wordpress.com/2013/01/16/groups-seek-protection-of-whitebark-pine-under-the-esa/#comment-13236.

    So, Sharon, if you’re going to write, “I think it it incumbent on the supporter to pick out the pieces of the document that make the argument” anyone can see that this is exactly what I did below in that comment. Thanks for being fairer in the future with your choice of words and approach Sharon.

    ———————-

    Sharon, perhaps you should review the lawsuit again, as there are some parts of it that help answer some of your questions. And most everything I’m writing below comes directly from the info in the lawsuit. But, honestly, I don’t know how to answer some of these questions which you basically have been framing, “wouldn’t it be better if the world worked this way, even though it doesn’t work this way?”

    As you’ll see, the USFWS already determined in July 2011, after a 12 month review, “After review of all available scientific and commercial information, we find that listing P. albicaulis (whitebark pine) as threatened or endangered is warranted. However, currently listing P. albicaulis is precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants.”

    As you are likely aware, Congress required the USFWS to establish a “Listing Priority Number” to each species depending on how seriously it is being threatened. The numbers run from 1 (highest priority) to 12 (lowest priority). This was part of an effort to “make the most appropriate use of the limited resources available to implement” the ESA.

    The USFWS assigns Listing Priority Number 2 to whitebark pine based on the its finding that the species faces threats that are of high magnitude and are imminent. Again, one a scale of 1 to 12, coming in at number 2 means it’s a pretty darn high priority, or at least should be.

    Furthermore, there are currently no species with LPN 1 waiting to be listed, nor were there any LPN 1 species at the time of the USFWS’ July 2011 decision. In other words, there are no species with a higher priority Listing Priority Number than whitebark pine.

    Furthermore, in the section of its July 2011 decision where the USFWS lists the “high Priority Listing Actions” that will receive funding for listing in the FY 2010 or 2011 – instead of whitebark pine – the USFWS lists 39 species with Listing Priority Numbers between 3 and 12. In other words, species with LPN between 3 and 12 do not face greater threats than whitebark pine, which has a LPN of 2.

    The lawsuit continues to go into lots of details about where the agency is currently spending it’s money and time and how 40% of the funding in FY 2010/11 actually went to species that have a lower priority than whitebark pine. Again, I’d encourage people to read the actual lawsuit, view all the info and then ask questions. Because having me simply re-type what’s in the lawsuit here isn’t really a homework assignment I should be doing for you. Thanks.

    Reply
  2. Chances are, the species filter and LPN numbers are “checked at the door” and lined up accordingly. However, they have not yet entered the hallowed halls until another species, currently being “processed”, has finished its journey to protection. and there is room inside for another. Such processes may take months or years to complete, and you cannot just drop that study in favor of a “rush order”. I think what they mean is that WBP have moved close to the front of the line, outside of the building, still. Good science takes time.

    Reply
  3. Matthew, I guess I am having trouble doing the crosswalk between this lawsuit and how it can work to help WBP.
    I don’t see how it matters what priority WBP is compared to other species, if everyone is doing everything they can for the species. Priorities and budgets only matter to trees insofar as they are translated into actions. So my question is simply

    What real world things are happening that the plaintiffs want to stop?
    what real world things aren’t happening that plaintiffs would like to start happening?

    Reply
  4. By coincidence Cabin Gulch is a tributary to Deep Creek located adjacent to the photo featured in my web-page http://www.wvmcconnell.net/?page_id=105. So, if readers would like to see what the stand conditions are in this watershed and why a salvage sale is appropriate, take a look.

    Not so coincidentally, the same interests who have opposed public land management over the past quarter century, thus contributing to the present stand conditions, are now litigating against salvage sales attempting to mitigate these conditions. Some may consider such consistency a virtue, but how does it contribute to rational resource husbandry?

    Reply
  5. “I would prefer to see our federal agencies managed by folks with recommendations from a public FACA committee rather than by a few lawyers in a non-public forum settling a lawsuit.”

    This preference seems partly unrealistic, given what is legally allowable. I would prefer that people drive less and walked/bicycled more.

    One of the interesting things is that many who post here are essentially asking “enviros” not to do what they are legally entitled to do. Instead they advocate for their own interests/perspectives instead of actually reaching across the aisle. In my recent graduate studies, which involved persuasion/communication/decision science, I can honestly say that it is rare that someone crafts a response that has some reasonable probability, when received by someone on the other side of the fence, of actually causing them to swing their vote.

    I highly recommend folks do some reading on effective written persuasion strategies. Otherwise we are essentially preaching to deaf ears or those already converted.

    Reply
    • 1) It is not unrealistic.. it is perfectly legally allowable to have FACA committees and to follow their recommendations.

      2) I think that I am reaching “across the aisle.” In this case, both sides are fans of whitebark pine. In fact, my tribe of geneticists has been laboring in obscurity lo these many years http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5369379.pdf

      I am simply trying to understand what the other side is concerned about. I am not trying to convince anyone of anything…I would prefer that folks not use litigation as a tool for a variety of reasons including the tendency to shut down dialogue (the cone of silence) and the lack of public involvement and transparency.

      As in the prayer attributed to St. Francis here:

      Lord, make me an instrument of your peace,
      Where there is hatred, let me sow love;
      Where there is injury, pardon;
      Where there is doubt, faith;
      Where there is despair, hope;
      Where there is darkness, light;
      Where there is sadness, joy.

      O Divine Master,
      grant that I may not so much seek to be consoled, as to console;
      to be understood, as to understand;
      to be loved, as to love…

      “Seek first to understand” is also a principle in the Steven Covey 7 Habits. Some folks on this blog have not been Steven Covey fans, though. However, he is from the Interior West.

      I am trying to express, however inchoate, feelings and frustrations that people (those being litigated and their cooperators) can feel when they are involved- not so much to change the minds of the litigators, but to reach out into the vast moderate universe in search of policy improvement ideas. Many folks, including some in Congress, seek a better way.

      Reply
  6. A question asked before, but I don’t recall ever viewing an answer…

    “If all these lawsuits and injunctions originated by the environmental activists are so wrong, why are such a large majority of these suits upheld by the courts? By judges who are not experts in these biological matters, but who review (presumably from an unbiased base) the expert testimony and/or research presented by both parties.

    And why hasn’t the USFS learned from these rather frequent defeats, learned to build better projects, or package them better, or how to ensure that NEPA requirements are fully met? How many times must these forest managers get their hands slapped before they learn how to play the game?

    Reply
    • The USFS wins much more often than it loses, and its winning percentage is generally improving over the last 30 years. FS courtroom victories are reported rarely because losing lawsuits don’t change practices or policies. Since it’s only the FS’s losses that get big publicity, many are left with the impression that the FS is a frequent litigation loser.

      On the other hand, it’s not the quantity of the FS’s losses that’s concerning; it’s that the FS loses some really big cases. The FS has a long legacy of resisting meaningful and legally required reform, forcing these issues into courtroom battles when they could have been solved with thoughtful, prophylactic measures. Clearcutting, herbicides, roadless areas, and old-growth logging are all issues where government lawyers and FS managers advised the bureaucracy to slow down, back up, and reconsider, only to be ignored. More than once I’ve seen federal judges and appeals court panels throw their hands up in frustration at FS foot-dragging and mulish resistance to change. The courts’ opinions under these circumstances use strong, quotable language that furthers the FS’s poor litigation image.

      It has taken a generation for these reforms to begin to gain a foothold within the agency’s cultural DNA. The foothold is often tenuous and, in some locales, reactionary opposition still dominates. But, overall, the FS is a changed agency from the one I first grew to know in the late 1970s.

      Reply
  7. Ed,

    1)I don’t think a majority are held up by the courts… I think Keele and Malmsheimer did a study of this. I found this one but am asking about a more recent one.

    2) Judges can make errors of law and knowledge, which is why I don’t think the courts are the best way to resolve the disputes.
    3) The FS has .. that’s why they are doing so well in court. But bulletproofing documents costs money that could be used to actually do work on the land, like say, riparian enhancement, or law enforcement for OHV’s. And don’t forget that Mr. Suckling intended lawsuits to be “psychological warfare”. War is unpleasant even when you win.
    4) So the problem is not that the FS can’t coadapt. The problem to me is that in court, by judges, is not the best place to make land management decisions.

    Reply

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