Litigation and Policy, a tangled web

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

5 Comments

  1. I just remember being told once (by a line officer I think) that “The Forest Service doesn’t make policy based on litigation.” I always thought that was a corollary to blaming the lawyers and the courts.

  2. Guy

    Thank you very much for the link. I was in the industrial forestry and wood products industry, so this background is new and very helpful to me.

    Re: Your link on NFMA stating: “Congress required that the regulations “insure that timber will be harvested from National Forest System lands only where—

    1) soil, slope, or other watershed conditions will not be irreversibly damaged;
    2) there is assurance that such lands can be adequately restocked within five years after harvest;
    3) protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat; and
    4) the harvesting system to be used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber” ”

    This is no different from the SFI certification standards and the Best Management Practices as I understand them in the south. This is what any decent professional forester believes.

    So I would conclude that all of the current fuss, angst, and litigation is mostly the result of what happened after the 1976 NFMA which was “Touted by the same Senator Humphrey as the means to “get the practice of forestry out of the courts and back in the forests,””.

    Can I assume that what put the practice of forestry back into the courts was the Endangered Species Act and especially its poster child the NSO?

  3. Gil, the ESA is a big litigation player for sure, the other big one being NEPA. Very often they show up together in the same case. Here on the drier side of Region 1 it’s more typically lynx, griz, bull trout for protected species. But I do like your term “poster child” for NSO, I don’t know how many hearts actually bleed for the bird itself, but it acts as a kind of surrogate (aka poster child) for a certain subset of old-growth habitat, and since there’s no ESA for the habitats themselves (or ecosystems, sorry Bob), the NSO becomes the hook to hang a case on (it’s strategery, as George Bush used to say). Not sure how many folks out there agree with that assessment. The NSO has unfortunately taken on a significance that’s greater than its ecological importance. Again, that’s my opinion, personally I’d rather be protecting the decay fungi, if we lost them we’d really be in trouble 🙂

    • Thanks Guy! I ran into a combination of issues during this discussion and appreciate your moving it forward.

      Here is what I found out… my personal experience requires me to 1) tell stories of examples of why I came to theses conclusions about “how litigation works in practice” And 2) finding examples of literature that agree with my personal experience. So it will take me time to do both things.

      At the same time, my other volunteer responsibilities and schoolwork have come to a head so that I can’t do it right away.

      What I’ve noticed, as I talk to others about this, is that if we feel that the current process is suboptimal, we need to articulate more clearly why that is the case. I suspect that there aren’t many who have viewed the inner workings of litigation who are not speaking up who have personal experiences of suboptimality, so I will be encouraging them to speak up as well.

      Anyway, I will be back with some thoughts early next week.

  4. Here in the Sierra Nevada, fear of litigation has, indeed, formed policy. Instead of waiting for the California Spotted Owl to be listed, the Forest Service voluntarily put policies in place to give this owl more protections, arguably, than the Northern Spotted Owl. All trees larger than 30″ in diameter are protected (except for safety), and clearcutting was outright banned. Some people continue to want to change those rules but, they have served us well in profitable thinning projects that rarely get litigated.

    Now, if we could only hammer out some kind of consensus with salvage projects… *sigh*

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