Quid Pro Nada: Be Wary of Trading Wilderness for Managed Acres

olympic plantation

Now some people don’t agree with the concept of Place-Based Bills (or PBB’s as I call them). I am not an ideologue about that. But I do think that if you have one that trades more wilderness for more management, then you should get what you trade. I apologize to those offended by my mixing of Latin and Spanish in the title..

Check out this op-ed that a group of us had in the Oregonian last Sunday.
Here’s the link.

Timber production deserves equal treatment on public lands: Guest opinion
(I didn’t like this title as it sounds like we think harvesting and wilderness have equal value; our point was that if you do a deal, there should be ways to make sure that each side actually gets what’s in the deal. Oh, well. I do appreciate the Oregonian printing it, though!)

By Robert Malmsheimer, Sharon Friedman, Jay O’Laughlin and Paul Adams

As Oregonians consider ways to promote the sustainable use of the O&C lands and other publicly owned forests and provide communities with sources of jobs and income, we ask you to critically consider an important problem and a new idea to address it. Negotiated, place-based bargains, such as Rep. Peter DeFazio’s O&C Trust, Conservation and Jobs Act, legislatively designate some lands as wilderness or similar “set-asides” (e.g., old-growth, stream buffers), while requiring timber harvesting on other lands. Although this may seem like a reasonable “trade,” in reality it is not equitable.

The problem is in the legal protections of the bargains themselves. The lands designated by Congress as wilderness and other set-asides will have little or no management, and we have nearly 50 years of judicial decisions interpreting the Wilderness Act of 1964 to safeguard this expectation. However, the same is not true for the agreed-upon timber harvesting. While the language in most of these place-based proposals limits, or makes more difficult, some types of legal challenges, it does not prevent them. Nor does it ensure that judges will enforce the bargain that forest management proponents faithfully negotiated.

Is there a solution? Yes. In order to guarantee that the lands designated for the management and production of forest products are not subject to appeals and litigation, these legislative proposals must include language that explicitly states that actions authorized in these bargains are not subject to judicial review. Such language would prevent litigation.

How would it do so? This concept has a precedent in section 706 of Public Law 107-206, which authorized the Forest Service to respond to a severe beetle outbreak, including requiring timber sales in the Black Hills National Forest, while simultaneously expanding the Forest’s Black Elk Wilderness area by 3,600 acres. This exchange was upheld in Biodiversity Associates v. Cables (2004), thereby safeguarding an equitable bargain in the Black Hills.

Some may criticize this proposal, arguing that using such legislation will lead to “logging without laws.” But that is not so. By requiring the public land managers to comply with all current environmental laws (e.g., National Environmental Policy Act, Clean Water Act, Endangered Species Act), the agency still must undertake relevant environmental analyses and follow all relevant resource protection directives. While the judicial system would not be available to address agency failures, the political system, through Congress and the administration, would do so. More important, such failures are unlikely because the resource professionals who manage our public forests have extensive expertise and experience incorporating environmental protection into land management.

Lacking such a guarantee for timber production, the two sides to a place-based bargain have agreed to inequitable deals. One has guaranteed that some lands will be managed as wilderness and the other has provided no comparable safeguard. There is simply no assurance that the lands designated for forest management will actually produce anything but continued legal conflict; conflict that keeps public land managers from sustainably delivering community, social and economic benefits for Oregonians.

Robert Malmsheimer is a professor of forest policy and Law at the SUNY College of Environmental Science and Forestry in Syracuse, N.Y.

Sharon Friedman retired from the Forest Service as director of planning in the Rocky Mountain Region and currently runs the “A New Century of Forest Planning” blog (forestpolicypub.com).

Jay O’Laughlin is a professor of forestry and policy sciences at the University of Idaho.

Paul Adams is a professor and extension specialist in the OSU College of Forestry.

42 Comments

  1. Maybe “Responsible Timber Production Deserves Equal Protections on Public Lands” would be a better title. I fully agree that there needs to be a guarantee against a “bait and switch” strategy that management opponents can, and will use. Preservationists like Hanson will continue to sue, if allowed to. “Procedural” issues, leading to lawsuits, will continue, if allowed to. Legal reform needs to close loopholes that prevent beneficial projects from being enacted.

    Now, I’m going to look at the comments by partisan folks who read the Oregonian.

  2. “While the judicial system would not be available to address agency failures, the political system, through Congress and the administration, would do so.”

    Now, doesn’t that seem like an efficient, workable safeguard? So the agencies can bull forward, make mistakes and we can complain to our legislators…

    The ability to seek relief in the courts is the only real power the people have at their disposal. This is a democracy yet it has been demonstrated time and again that the politicians don’t place a lot of importance on what the majority of constituents truly want.

    The Hastings legislation (and the O&C provisions) is very popular with those who would have a direct financial benefit from it. The majority of American citizens want no part of it.

    While it’s great that the legislation sets aside some treasures of wilderness, the offset in what is given up is unacceptable. Those set asides should be protected just because it’s the right thing to do, not offered as payment for selling out the rights of the American public.

  3. Sharon said: “Some may criticize this proposal, arguing that using such legislation will lead to “logging without laws.” But that is not so. By requiring the public land managers to comply with all current environmental laws (e.g., National Environmental Policy Act, Clean Water Act, Endangered Species Act), the agency still must undertake relevant environmental analyses and follow all relevant resource protection directives.” But Sharon, that really isn’t true. Section 706 very explicitly says “actions authorized by this section shall proceed immediately and to completion notwithstanding any other provision of law including, but not limited to, NEPA and the National Forest Management Act (16 U.S.C. 1601 et seq.). Such actions shall also not be subject to the notice, comment, and appeal requirements of the Appeals Reform Act, (16 U.S.C. 1612 (note), Pub. Law No. 102-381 sec. 322). Any action authorized by this section shall not be subject to judicial review by any court of the United States.” As you know, NEPA challenges are based on the Administrative Procedures Act (APA) which provides the basis to challenge decisions or actions taken by Federal agencies. APA allows a person who thinks they have been harmed by a Federal action to obtain judicial review of the action. Your Section 706 “precedent” explicitly takes that right away, and so the contention in 706 that USFS will still be following NEPA is hollow and disingenuous. And if you arbitrarily remove the citizen suit provision from the ESA, USFS would not be following the ESA, it would be following a gutted shell of the ESA. Here’s an idea, let’s just introduce a new bill in Congress for every proposed USFS timber sale, exempting them all from citizen suits entirely. And better yet, let’s hide this legislation within an act entitled “2002 SUPPLEMENTAL APPROPRIATIONS ACT FOR FURTHER RECOVERY FROM AND RESPONSE TO TERRORIST ATTACKS ON THE UNITED STATES”. How could any enviros possibly argue that timber sales don’t fall under recovery from and response to terrorist acts? Sorry, I think this idea is pretty lame. I’m a little embarrassed that a professor from my university signed on to it. -Guy

    • I don’t think you can fairly criticize Jay as not knowing about this- he’s been looking at this stuff for years.. you can disagree with him whether the Black Hills experiment was a good idea. You might think it’s a bad idea, but the judge said it was legal. So if we believe that judges should settle natural resource conflicts… then it works.

      It seems to me that the current situation has led to a great deal of difficulties to communities. Those are real. A variety of solutions have been attempted. The BH approach seems to be successful. I think that people who don’t like the BH approach should put other options on the table and we can discuss them.

      • hi Sharon, if you mean me, then I don’t criticize O’Laughlin for not knowing about this. I don’t really have a lot of insight into what he knows or doesn’t know, or what he does here at the University of Idaho, he doesn’t seem to be a guy who publishes a whole lot, but he is part of a so-called Policy Analysis Group here. To the extent that he appears to speak for my university, I think this op-ed is an embarassment. I’ll explain why: First, the fact that a judge found the Black Hills plan to be “legal” says almost nothing. Congress can cobble together most any piece of legislation and if it’s signed into law, then unless it is unconstitutional a federal judge is bound to find that it’s legal. That says absolutely nothing about whether it’s a good idea or not. Here, four individuals are acting as cheerleaders for an approach that effectively bypasses long established U.S. environmental laws. It’s clear the public is unlikely to let them actually change APA, NEPA, or ESA, so instead a way is found to weasel around the laws. The claim about “requiring the public land managers to comply with all current environmental laws” is patently false as discussed elsewhere in this thread by more than one poster. I’m sure that most everybody is aware that USFS and the timber industry are highly distrusted and held in disregard by a large segment of the population. That’s unfortunate, and here, the writers of this op-ed are playing right into that impression, by emphasizing the point that USFS is simply unable to function within this nation’s environmental laws, and therefore needs to carve out exceptions to these laws. By doing so, the authors of this piece discredit USFS, SAF, and the universities that these three professors belong to. I think that’s highly irresponsible, but of course others may disagree as is their right. -Guy

        • sorry, hit “post” too quickly. Three short points: first, my comment above is not just written from my perspective as an attorney, but also as a professor at the University of Idaho. Second, any idea that “judges should settle natural resource conflicts” is inaccurate. Judges settle matters of law, which may or may not underlie natural resource policy and actions. That’s different. Third, any suggestion that putting something “on the table” is inherently constructive is unwarranted, there are plenty of things that don’t belong on the table in the first place.

          • ok, one last comment. Just met Jay O’Laughlin (who stopped by my office), had a nice chat, he does indeed have a great deal of productivity that I was unaware of (and so I apologize for suggesting otherwise). Will probably find areas of policy agreement and others of disagreement, which is fine. I should have stuck to just expressing my opinions about the Black Hills/Daschle/1526/Daynes approach, which I still think stinks.

            • Thanks, Guy. Apology accepted. Someday soon we should have a conversation about issues of substance and judicial review finding arbitrary and capricious behavior by USFS employees, contrasted with issues of process and judicial review finding procedural failing by USFS employees. Both findings violate the law. But as a society, do we really care if all the i’s are dotted and t’s are crossed on planning documents, or do we care about the resources themselves? I’m a lot more concerned about the condition of forests and the communities in which the people who maintain forests and harvest and process the provisioning ecosystem services, which include forage, minerals, and timber. This includes wood to manufacture useful consumer products and, as a by-product, renewable energy feedstocks. We have choices. We can use that wood, or lose it to insects, diseases and wildfires. As a society, we don’t want to pay the escalating bills for wildfire protection and are unwilling to make the investments in preventive maintenance to restore and maintain fire-resilient landscapes. For example, when the USFS firefighting budget came up $600K short this year, Chief Tom Tidwell had to raid other budget items to make up for the shortfall, including hazardous fuels treatment projects. He also wants to accelerate restoration of resilient conditions, and he says 2 million acres of land in Idaho need mechanical treatment (i.e., logging) before prescribed fire can be used. That’s a lot of wood. Sure, some people distrust the USFS, and maybe you’re one of them. As I mentioned to you, and wanted to include in the op-ed piece but it did not pass muster with one of my colleagues, over the past three years the Black Hills National Forest has harvested more timber than any other unit in the National Forest System. They are getting on with the restoration job. To me this is astonishing, given the quantity and quality of timber there compared to other units in the system. There is a policy reason at the bottom of this. I am only just beginning to try to understand it and the potential ramifications for the entire NFS. There is a lot at stake here that is substantive. Let’s work on that collaboratively with others. The procedural failings business is costs taxpayers a lot of money. I don’t think as a society can we afford to keep spending so much for planning and analysis documents that do not in the end improve resource conditions. A lot of that money is to create documents that will pass muster when brought to the dock to see if procedural requirements have been met. Next time your timber lawsuit clients want to sue to stop an active management project, ask them if they have tried to work out the substantive issues with the managers. This blogging business takes a lot of time. I just wanted to say thanks, and look what happened! To mix Latin and Spanish, as my colleague Sharon did on this topic, No mas, amici!
              forest resource policy

                • Dude, that’s spotted owl 🙂 But the meat and potatoes part still stands, here it is again with inflammatory language hopefully mostly redacted:

                  First, the fact that a judge found the Black Hills plan to be “legal” says almost nothing. Congress can cobble together most any piece of legislation and if it’s signed into law, then unless it is unconstitutional a federal judge is bound to find that it’s legal. That says absolutely nothing about whether it’s a good idea or not. Here, four individuals are advocating an approach that effectively bypasses long established U.S. environmental laws. It’s clear the public is unlikely to let them actually change APA, NEPA, or ESA, so instead a way is found to weasel around the laws. The claim about “requiring the public land managers to comply with all current environmental laws” is untrue as discussed elsewhere. I’m sure that most everybody is aware that USFS and the timber industry are highly distrusted and held in disregard by a large segment of the population. That’s unfortunate, and here, the writers of this op-ed are playing right into that impression, by emphasizing the point that USFS is simply unable to function within this nation’s environmental laws, and therefore needs to carve out exceptions to these laws. -GK

                  • But I don’t think that’s what happened. Here’s what I think.

                    1. There are environmental laws. The FS follows them generally.

                    2. People who don’t want projects for ideological or other reasons, claim that the FS is violating them in order to litigate, and have a special seat at the table in case they win (in some cases, it appears that getting EAJA fees is also a factor).

                    3. In the Daschle case, the groups cut to the chase and did a deal with the FS. Because it really wasn’t about the laws at all. The laws and litigation are just a way to get a foot in the door to do a deal. No “weaseling” here.. because in reality the Hills (likely) was following the law all along.

                    4. If you read the Bevington book or listen to Nichols’ or Suckling’s statements, they are pretty honest and direct. Litigation is a means to a policy end. They don’t want people “messin’ with ecosystems” and hence use litigation as a tactic.

                    • well, I guess we’re stuck at this point, so last comments for me, but…

                      1. There are environmental laws. The FS follows them generally.
                      ok, we hear that a lot from FS administrators, despite the fact that courts very often find otherwise. All the guys in prison say they’re innocent too, all the losing teams blame the ref, I guess we’ll just agree to disagree here.

                      2. People who don’t want projects for ideological or other reasons, claim that the FS is violating them in order to litigate…
                      I mostly think that’s untrue, there may be occasional examples of that, I guess I’m insufficiently cynical to think it’s at all the norm. But really, it’s just a variant of the previous point, i.e., “we’re not really breaking the law all that much, so they must just hate our ideology”

                      3. In the Daschle case, the groups cut to the chase and did a deal with the FS. Because it really wasn’t about the laws at all. Probably true, but that’s what happens in places like China or elsewhere where the rule of law isn’t respected. Backroom deals, tit for tat, greased palms. Hardly a role model for a participatory democracy, so I’m still surprised to hear it being advocated (i.e., the op-ed we started with in this post)

                      4. If you read the Bevington book or listen to Nichols’ or Suckling’s statements… I haven’t read or listened to those folks, guess I don’t get out much because I hadn’t heard of them, so can’t sign on to their viewpoints. Never heard those names come up from any enviro folks I’ve talked with either.

                      Anyway, it’s been an interesting post.

                    • Guy: One last quick comment — and I have enjoyed this discussion and learned quite a bit from it as well — you must be familiar with Kiernan Suckling and his organization Center for Biological Diversity. He has made several interesting quotes and claims through his career, as well as being one of the most accomplished “serial litigators” (to use Larry’s term) in the history of the planet. We’ve discussed his claims and politics several times here, and not always in a positive fashion.

                    • damn Bob, I’ve passed through Sweet Home a lot but never stopped (never really even slowed down actually), but now I’ve got a reason, thanks! (I suppose they serve it “medium rare”?)

                    • Guy: Actually, they will serve it anyway you request and they really are excellent burgers. The old Cedar Shack burned down several years ago and it took lots of years and hassles getting new building permits, so you may have passed through during the time it was closed. Long-time local owners and a favorite eating place for many people in town. Best spotted owl anywhere — and once you’ve had one you’ll never go back to a Big Mac without regret. And no, I don’t know the owners or own any part of the business — just good people, good food, and a good sense of humor. You might want to avoid karaoke night, though.

              • Jay

                Thanks for your wonderful comments – We need you here badly – What you have expressed is consistent with what I have learned, experienced and come to believe through time. We have some people here that can’t even consider that sound forest management includes addressing environmental concerns.

                You are right, this blogging takes too much time. Can you can suggest a more productive way for those of us who aren’t as eloquent as you to spend our time? At least I am refining my thoughts by putting them to paper and evaluating the responses. it’s better than doing nothing. Or is it? 🙂 🙁

              • “But as a society, do we really care if all the i’s are dotted and t’s are crossed on planning documents, or do we care about the resources themselves?”

                I think you will find that most legally required procedures in environmental laws have a purpose of providing the information needed to make informed decisions. By imposing such requirements, Congress has stated that society wants certain steps to be taken to ensure that its bureaucrats do not jump to conclusions based solely on their personal or professional opinions on what is ‘right for the land’ (or the local economy). Some of these kinds of opinions are reasons we now have procedural safeguards that didn’t exist 50 years ago.

                The sentiment that seems to run through a lot of these blog posts is that the cost of these procedures has been too high. That is the kind of question about national public resources that a society should debate, but not just on a place-by-place basis, and especially not by carving out exceptions to existing national laws based on local politics. (And after all, weren’t the spotted owl ‘effects’ triggered by a substantive requirement of ESA?)

  4. Also, the picture provided in the Op-Ed looks like private logs, as there doesn’t appear to be any branding and painting on the log’s ends. Chances are, those logs have come from SPI lands, and are from trees over 30″ dbh. You can see those aren’t “butt cuts”. The comments seem interesting and only a few of them are kneejerk preservationist responses. I also enjoyed the pigs flying comment. *smirk*

    Looking at Andy Kerr’s Op-Ed, he doesn’t talk about Forest Service and BLM job losses. He also doesn’t talk about those other jobs that service the logging industry and the jobs that service people who have discretionary spending money. In Oregon, that means an awful lot, and to not include them is an unfortunate reality that should be addressed. I’m pretty sure that even the Oregonian has suffered from the loss of those jobs.

  5. Was impressed with some of the ignorance in the Gonagain’s comment page.
    But the DeFazio plan has the same flaw as the wonderful, groovy, collaborative Forest Jobs and Recreation Act being pumped by certain “moderate” Green groups and Jon Tester: Wilderness first and forever, management perhaps maybe for a little while on a tiny part of the forest, only for 15 years at best, and only if the Green groups that aren’t “partners” don’t sue. Yah, right.
    The fact is, the litigational intent of most sue-happy groups is to place a hold on any action that might impinge on the possibility of future wilderness designation. Just paralyze all possible actions on all possible lands, eventually the other interests will go broke or quit, or the other values will burn flat or wash away, leaving the field open to wilderness designation when all the opponents are beaten or bayoneted and the only folks at the Congressional hearing lovefest are the correct parties.
    So, in Montana, the response of the “everyone else” faction has been to call for “trigger language.” In other words, the wilderness designation would have to happen last, after the non-wilderness interests are satisfied that timber work will continue, management HAS been implemented, and there has been no litigation from the usual extremist outliers. There would have to be a review in which local governments would have to “sign off,” an incentive for the “mainstream” greens to hold up their bargain and not just walk away to another “collaboration” scam in another forest before the first one proves satisfactory.
    DeFazio doesn’t take that quid pro quo seriously, as his supporters are too addicted to the litigation sledgehammer. They are strategizing to appear (not be) reasonable just long enough to score incremental gains, then consolidate. What they aren’t dealing with is the fact that this kind of dishonest posturing still leaves them vulnerable to being stripped of all undue political power through the sort of exemptions HR 1526 carries.
    I’m sure Greens would hate having to sue strictly on actual physical violations of environmental law or principles rather than procedural hooey. But that’s getting to be a serious possibility.

  6. Wow. To suggest that “legislative proposals must include language that explicitly states that actions authorized in these bargains are not subject to judicial review.”

    What ever happened to the checks and balances among the three branches of government? This is particularly troubling given that a lot of public assets and money are at stake. The administering agencies have a conflict of interest in the flow of money. Shielding them form judicial review invites serious trouble.

    Congress has a lot of power. With that power comes the constitutional principle of check and balances. It is very naive to think that the law can be boiled down and simplified to the point that checks and balances can just be waived.

    When Congress passes new pubic land law it is typically a new layer that must be harmonized with other legal requirements such as the Endangered Species Act, National Forest Management Act, National Environmental Policy Act, Clean Water Act, etc. Why do the authors think that a new public land law should be different from all those that came before?

    Yes, managing public lands is hard. A lot of values must be balanced. Let’s not try to over-simplify it. And cut the public out of the equation.

    • Tree: I think the idea is to actually include the public in the equations, and stop all of the litigation and judicial nonsense that completely bypasses the public. It is a nice theory that each “new layer must be harmonized with other legal requirements,” but the Acts you cite didn’t do that at all — or maybe the litigants and legislators missed the memo. There is nothing more wrong with the Organic Act of 1897 or the O&C Lands Act of 1937 than the US Constitution or the Old Testament — yet these laws seems to have been avoided, rather than “harmonized” with the alphabet soup of regulations that have been implemented since the Wilderness Act of 1964. Or maybe you ‘d like to explain how the current mess has been harmonized with the earlier laws? I’m not seeing it.

    • Certainly, there must be other checks that can be used, which are acceptable to the American public, instead of the current dysfunctional litigational check that doesn’t protect forest values from “whatever happens”. Certainly, “Mother Nature” will “re-balance” forests in ways humans AND wildlife do not like. Where will spotted owls and goshawks nest when all the big tree forests are burned up? Remember, owls need MULTIPLE nests, in order to sustain their numbers. How many actual nests can we afford to lose? How many pairs of birds can we afford to lose?

      How many degraded water supply sources can we foul with ash and erosion? How many fisheries can be lose to burned watersheds and sediment? We’ve been over this before and no one is offering any answers to these many questions, regarding incinerated landscapes?

      • The problem is that environmental groups can sue any timber sale they chose too and while it might not result in stopping the sale it certainly can delay it. Even worst it is often the reason FS gives for not doing something, “we would just get sued so we are not putting our energies there”.
        Even if it is within the range of possible NEPA and the rest. It takes time and money to put up and them even more to defend. Ever since the start of the Northwest Forest plan and NEPA its been their way, the environmental community’s, or no way.
        So we keep making more “wilderness lands” and basically keeping the rest of it closed to timber management. There has been no compromise here, ever. And each time we make more “wilderness land or other kinds of reserves we act they have been that were that way forever, when is it just us defining them that way, like roadless areas with road in them and wilderness areas that have been logged. I remember the manager of the Hoopa Tribal forests telling about arguing with the FS during a fire. The FS was saying “We can’t build fire breaks in there, that’s wilderness”, and the manager saying, “you call it wilderness, we just call it home and we’d rather not see it burned.”
        And from my perspective I don’t understand why large diameter trees are off limits when it comes to selling them. These are often our most valuable trees and are essential for our “cottage industry type wood production”. Millions of them get burned, die or fall over ever year. Not to make something out of a few of them seems ignorant to me.

        • Stump

          Re: “I don’t understand why large diameter trees are off limits”
          –> Don’t you understand that they have all been set aside in case a NSO happens to fly by.

          Besides old is good for the environment and nobody seems to be able to think about what is going to happen when a massive accumulation of old dies off or burns up or gets killed by beetles all at once. We want all of our eggs in one basket because it is prettier.

          OOOooooPPPPppppSSSsss – The light will come on some day but not until we loose all of those precious birds that we are saving. Now that’s a moronic oxymoron if there ever was one. Maybe then we can remove emotion driven chicken little non-science from our forests.

  7. I think you have correctly identified the problem, Sharon. It’s easier to promise that something won’t happen (activities in wilderness), than to promise it will (logging). But your proposed solution is naive.

    If you simply take away judicial review of timber harvest (and assume there are no longer the pro-logging biases or pressures within the agencies that NFMA addressed), maybe we could count on the wisdom of the federal land managers’ interpretations of environmental laws. But if you also ‘require timber harvesting on other lands’ (meaning that this IS enforceable), how hard do you think agencies would fight to ‘incorporat(e) environmental protection into land management’ where that competes with timber harvest? I think it’s pretty disingenuous to suggest that a law with no judicial review, in a situation where there are strong incentives to break the law, is still a law – as most people understand the term. (I might buy ‘logging with marginalized, mostly irrelevant laws.’)

    • Keep in mind, Jon, a few things.

      First, there is the interpretation of who “the public” is. Greens are PART of the public, sure, but it’s a small subset.

      Second, the larger public, for the most part, does not object at all to timber harvest or feel strenuously enough about the issue to object — and when they do, Green groups always love new named plaintiffs to blab about harm, read any boilerplate appeal. But most of us public are cool with forestry and don’t scream and yell Call that implied assent, something which is unrecognized.

      Third, even if a member of the public chooses to active assent to a project, they run up against Jack Ward Thomas’s “rocket ship” model, a big old Saturn V on the launch pad with all the bells and whistles, but with only a stop button on the control panel. That’s the state of the law. There really is no way for the public to effectively support active projects except through peripheral friend-of-court participation — and I’m not sure if such participation is rewarded with EAJA funds if successful.

      Finally, the issue of changing the laws in favor of forestry is bidirectional. Let’s say HR 1526 or something similar passes in a future Congress. How long would that law stay in place if the larger, not-Green-professional public decided the agency was abusing its authority? Booom.

    • Jon

      Re: “I think it’s pretty disingenuous to suggest that a law with no judicial review, in a situation where there are strong incentives to break the law, is still a law”

      No, Jon, it is very simple – All that is required is independent third party audits – It works for timberland enterprises who voluntarily submit to it. Make it federal policy and we cut out the need for judicial review.

  8. Congress writes the laws, they have every right to amend their own law…as in the case of a “Not subject to judicial review” rider. That IS a matter of law. End of story. The most unambiguous ruling I’ve ever heard from judge molloy or the 9th circuit is their rulings upholding Sen. Tester’s “Wolf Rider.” The enviros who took the rider to the 9th tried using some obscure ruling from the 1800’s to overturn it…ironically the 9th themselves tried to use the same “precedent” to overturn some rider a decade ago until the Supreme Court showed them the “error of their ways.”….again.

    Is it a “good idea” that an extreme minority in a state can game these enviro laws to usurp the majority will of said state? These enviro lawsuits serve to concentrate the power of setting forest policy within a state into a handful of people. A couple lawyers, a couple activists, a couple judges and one aging rock star to fund it all have more control over timber harvest in Montana than one million citizens. The concentration of this power into a handful of people is an afront to democracy. It also means that forest policy is dictated not by the ecology, not even ideology, but by the psychology of a few. It’s not about the “sanctity of the law”….it’s about two judge’s idea of the law. What would be illegal in the “eye’s of law” in Montana is not illegal in the eye’s of a judge in Colorado, Wyoming, South Dakota or probably not even one of the other five U.S. District Judge’s in Montana. I love English Common Law…centuries of codifying customs into law…(how could anything be ambiguous after all that time!)but the fairly recent enviro laws leave much deference to individual judges…and his belief system.

    The gaming of these enviro laws also has the effect of turning the West into a colony of East and West coast enviros. To say that a man whose life is intertwined with a local national forest should have no more say in it’s management than some guy stuck in a traffic jam in L.A. who ” feels good about himself” just knowing there’s wilderness out there somewhere that he’ll never see, is fundamentally unfair. To say that, “The national forests belong to all citizens” is the cop out of choice for those who know they have no “local” support and must rely on the guy stuck in the traffic jam on both coasts to keep the enviro laws in effect that enable him to force his will upon the local yokels. I don’t think the guys stuck in a traffic jam is the “local control” that Roosevelt and Pinchot had in mind when they used that term to pitch NF’s to the locals 100 years ago. I thought that if there was ambiguity, the “intent” of the original parties would rule. I would say that the “wolf rider” is an effective constitutional “check and balance” against such abuse by far away majorities. Isn’t that why we have a Senate? So the “big population” states can’t impose their will on the little ones….you know…like the one’s out West.

    Well…enough… Perry Mason is on!(Your honor… That testimony is irrelevant, incompetent, and immaterial”…do they even say that in real life!) I had to do a double take on the above….am I reading this right….is Sharon actually “endorsing” a “not subject to judicial review”? May I suggest you call it the “Fire Rider.”

    And Guy….it takes a lot of character to apologize. People respect that a lot more than they do stubbornness. Good for you.

    • Derek: I’m pretty sure that the “Separation of Powers” under the US Constitution is not “some obscure ruling from the 1800′s.” Fact is, U.S. District Judge Molloy maintained that had it been his court’s decision, he would have ruled Tester’s Wolf Delisting Rider an unconstitutional violation of the separation of powers. But he couldn’t because he was bound by 9th Circuit precedent.

      Below are snips from U.S. District Judge Molloy’s ruling, in his own words:

      “This case presents difficult questions for me. The way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the Department of Defense and Full-Year Continuing Appropriations Act of 2011 is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law. The principle behind the rule of law is to provide a mechanism and process to guide and constrain the government’s exercise of power. Political decisions derive their legitimacy from the proper function of the political process within the constraints of limited government, guided by a constitutional structure that acknowledges the importance of the doctrine of Separation of Powers. That legitimacy is enhanced by a meaningful, predictable, and transparent process.

      In this case Defendants argue—unpersuasively—that Congress balanced the conflicting public interests and policies to resolve a difficult issue. I do not see what Congress did in the same light. Inserting environmental policy changes into appropriations bills may be politically expedient, but it transgresses the process envisioned by the Constitution by avoiding the very debate on issues of political importance said to provide legitimacy. Policy changes of questionable political viability, such as occurred here, can be forced using insider tactics without debate by attaching riders to legislation that must be passed.“

      “The Separation of Powers requires us to discern the difference between arguments of policy and arguments of principle. It is the function of Congress to pursue arguments of policy and to adopt legislation or programs fostered by recognizable political determinations. It is the function of the courts to consider arguments of principle in order to enforce a statute, even if the statute itself stems from an altered policy. This distinction holds true even when the legislative process employed involves legislative prestidigitation…”

      “Fairness is dethroned and confusion is crowned queen when the laws enacted pursuant to established public policy are rendered inapplicable on an ad hoc basis…”

      “If I were not constrained by what I believe is binding precedent from the Ninth Circuit, and on-point precedent from other circuits, I would hold Section 1713 [Tester’s rider] is unconstitutional because it violates the Separation of Powers doctrine articulated by the Supreme Court in U.S. v. Klein, 80 U.S. 128 (1871)…”

      “Structurally the doctrine of Separation of Powers is still viable, but in my view it is violated when there is an effort [Tester’s wolf rider] to change a political policy by resolution that is not clear, does not identify what law is specifically being changed, does not state what rules apply in the future, and is inconsistent with the underlying political purposes of the law that is being changed…”

      “The heart of the debate turns on whether Congress can insert into its directive a nonspecific phrase that by itself sweeps aside concerns that Congress is infringing upon the judicial power. When laws are amended by implication, questions can remain regarding how the law was changed. The political process requires Congress to take stances on issues. It is not the role of the judiciary to write the law. In my view, the Ninth Circuit’s deference to Congress threatens the Separation of Powers; nonspecific magic words [like those in Tester’s rider] should not sweep aside constitutional concerns… The language “without regard to any other provision of statute or regulation” operates as a talisman that ipso facto sweeps aside Separation of Powers concerns.”

  9. Say….one more thing. If I recall….Montana has 5 U.S. District judge’s. Why is it that the enviros always go to Judge Molloy. Is it a “jurisdictional thing”? I don’t think so….since Molloy has heard timber cases from Libby to Broadus. Is it just a case where the enviros can pick whose court their case is heard in because they file it in his court? I don’t think the cases are assigned to the various judge’s. I don’t know….just asking for clarification.

    But if it’s a matter that the enviros get to “choose” what judge hears their case…and if justice is blind and it’s all about following the law…then why doesn’t the Alliance wild rockies choose another judge once in awhile? Surely if their case can stand up to the law…it shouldn’t matter what court it’s heard in…right?

    Perhaps the mere fact that the AWR always chooses Molloy…indicts the whole notion that it’s not about picking some liberal judge…because they sure seem to be picking the same one over and over again. But I might be completely wrong….please help me understand.

    • “But I might be completely wrong….please help me understand.”

      Yes, Derek, I believe you are misinformed about this. For starters, in December 2010 Molloy announced he was set to “retire” to “senior status,” which started in August 2011. “Senior status” means retirement from active service. Senior judges continue to hear cases, usually with a reduced case load.

      I always thought that U.S. District judges sort of carved out their legal niches and that’s why certain judges hear certain types of cases. Regardless of how that system works, I’ve certainly never heard anyone in the environmental movement talk about “picking” a specific judge.

      Anyway, based on my observations, for the past few years most of the Forest Service related cases in Montana have gone through U.S. District Judge Dana Christensen.

      Here’s what the official U.S. Courts website says:

      Q: How are judges assigned to cases?

      Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court’s rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.

    • A FAQ from DeFazio’s office says:

      MYTH: The OCTCJA would take logging levels back to the peak logging levels of the 1970s and 1980s when 1.6 billion board feet was logged each year.

      FACT: The OCTCJA would produce an estimated 400-500 million board feet per year – 70 percent less than historic levels. To put the proposal in perspective, more than 3,500,000,000 board feet of timber is logged each year in the State of Oregon. The O&C lands currently account for less than six percent of that total. Seventy eight percent comes from private and tribal lands.

Leave a Reply

Your email address will not be published. Required fields are marked *