If anyone’s interested, this post basically carries over a discussion from the “hazard tree lawsuit update” post (http://forestpolicypub.com/2013/09/25/hazard-tree-lawsuit-update-adopt-a-project/comment-page-1/#comment-19429), about the question of whether forest management policy is set by litigation, or not (i.e., Sharon’s phrase “If we currently manage forests by court case . . .” There, I argued (along with others) that litigation doesn’t set policy, but I think maybe I understand where Sharon was coming from with her statement. Hence, here’s my short attempt to unravel the policy/litigation tangle. A standard definition of “policy” goes something like “A policy is a principle or protocol to guide decisions and achieve rational outcomes. A policy is a statement of intent, and is implemented as a procedure or protocol.” If that’s the case, a policy is a relatively formal instrument, not “what you happen to be doing” but rather “what you’re supposed to do and how you’re supposed to do it.” The NFMA (or a particular Forest Plan derived from it) is as good an example of policy as any, since it lays out intent and the requirement for procedures that range from stringent (i.e., standards) to more precatory (sorry, lawyer term = wishful but not necessarily legally binding) such as guidelines. NEPA, ESA, or CWA are other good examples of federal policy that agencies are required to follow. Litigation against the USFS generally takes the form of one or more plaintiffs claiming that the FS is not following the requirements laid out by policy. In that sense, litigation is a tool to enforce policy that’s in place, rather than to make new policy.
But, it’s also clear that litigation can be a motivating factor for subsequent policy changes. The classic example is the so-called “Monongahela Decision” (Izaak Walton League v. Butz, 522 F.2d 945, 950-52 (4th Cir. 1975)), where the Court said that the FS was violating policy (Organic Act) prohibiting clearcutting. That was a motivator for congress to implement new policy, in the form of the 1976 National Forest Management Act, 16 U.S.C.A. 1604, which in part had the effect of restoring clearcutting as a potential management tool. So, while litigation did not itself make new policy, it did have the effect of encouraging policy-makers to come up with new policy. While litigation and policy-making are not the same thing, there’s little doubt that they are intertwined. I found a 1975 quote from Hubert Humphrey with language very similar to Sharon’s, he said that NFMA would be a way to “get the practice of forestry out of the courts and back in the forests.” Hubert Humphrey is long gone, of course, and won’t have a chance to read this post 🙁 And, confounding the issues even more, some plaintiffs might indeed have the long-term goal of prodding an agency or legislature to change a policy (although again, the court itself doesn’t make that change), or of having the court interpret the language of the policy in a way that’s favorable to them (e.g., the recent SCOTUS Decker logging road runoff decision).
One last thing I found online, is a theoretical so-called “policy cycle” that apparently gets a lot of attention from policy people, it has 5 stages: 1. Agenda setting (Problem identification); 2. Policy Formulation; 3. Adoption; 4. Implementation; and, 5. Evaluation. Looking at a policy example such as the Nez Perce Forest Plan (1987), it’s easy to identify how stages 1 and 2 were done under guidance from NFMA, and presumably also with some opportunity for public/stakeholder input. Stage 3 is the formal signing of the Plan in 1987 (plus subsequent amendments). Stage 4 represents the duty of the FS to put the Plan into action, while focusing on guidelines and adhering to standards within it. Stage 5 is something I know less about, I assume that FS conducts some kind of ongoing formal/informal evaluation, especially since a re-write of the Plan needs to be done soon. But my point is that litigation falls outside of this policy cycle. It is aimed either at the early stages (to the extent that courts allow challenges to forest plans, but they don’t always, contending a plan isn’t “ripe” for litigation), but primarily at step 4 (Implementation): the lawsuit claims that the FS is not appropriately implementing the policy, and to the extent that policy components are legally binding, it’s breaking the law. Thanks for listening. Here’s a really good DOJ website about the origins of NFMA: http://www.justice.gov/enrd/3253.htm