Industry lawsuit against 2012 Planning Rule

I don’t know if this has been discussed, it was filed a year ago so maybe I’m just late to the party. It’s certainly an aggressive litigation effort that’s definitely not from one of the “usual suspects”. Here’s the link, the first place I saw it was on CBD’s website so here it is, I’m sure it’s available elsewhere too if you don’t want to patronize their site:

http://www.biologicaldiversity.org/programs/public_lands/forests/pdfs/industry_lawsuit_8-13-2012.pdf

A few enviro groups have joined in on the USFS side as defendant-intervenors (something about politics makes strange bedfellows…?)

I haven’t yet waded through all the relevant documents. But basically, the FFRC et al (a consortium of forest industry groups) is very unhappy with several provisions of the 2012 Planning Rule, as I read it they believe that:

1) They believe that the Planning Rule, 36 C.F.R. §219.8(a), creates an unprecedented new requirement that every forest plan “must provide for social, economic, and ecological sustainability.” (in other words, they don’t like that “sustainability” language)

2) They claim that the Rule violates MUSYA by unlawfully mandating extra-statutory “ecosystem services”, in  addition to the five statutorily-designated purposes of national forests. They say that providing “ecosystem services” is not a permitted purpose of national forest management under MUSYA.  As I understand it, they feel that these goods and services are traditionally viewed as free benefits to society, or “public goods” – wildlife habitat and diversity, watershed services, carbon storage, and scenic landscapes, for example.

3) A big one: They claim a violation of NFMA by unlawful mandate to maintain viable populations of plant and animal species of conservation concern before meeting multiple use objectives.

4) Another big one: they claim the Planning Rule unlawfully limits decision-making information by requiring decision-makers to “use the best available scientific information for every forest management decision.”   This one sounds kind of goofy at first glance, I think their (debatable) point is that scientific information shouldn’t be allowed to trump “commercial information” (I’m a little vague on what that is, exactly).

Anyway, thought I’d post this, it seems to fit into previous discussion on the “greatest good” in forest planning. The case is still going on (well, probably on hold right now for fed shutdown), they still hadn’t finalized the full briefing schedule as of a couple weeks ago.

8 Comments

  1. OK I just read down through the series of comments from the last time this lawsuit was discussed, and I want to first state that I have no interest in re-hashing what several of you went through last year. My question here is simply to ask whether anyone honestly believes the plaintiffs in this case are actually “anti-science” (that is a rhetorical question). My point is that this case illustrates really well the silliness that comes from playing in a zero-sum game. All sides end up making otherwise inane arguments as part of legal strategies, rather than actually articulating what they truly value.

    In this case, for instance, we all know that the remnants of the timber industry that still make part of their living from NF lands are scared by the discretion this rule gives the Forest Service to make decisions based upon considerations which may lead to less timber harvest (or something along those lines). Its quite Maslovian when you think about it and I would guess very few of us would react differently if we felt our livelihood was truly under threat. The problem with the zero-sum game is that it brings out the worst in people, causing them to make arguments that in any other situation they would never make. Yet, because we too are part of the “game” we then choose to believe (or pretend to believe for the sake of gaining an upper hand) that the arguments the “others” are making are what they actually believe (e.g. industry people hate science; enviros hate industry and rural working people, or some such)…and round and round it goes.

    OK. Got sidetracked on my own little rant…I’m not sure about where to head, but it really seems like some kind of alternative needs to be created. Maybe something like the cliche in which one child gets to cut the Nutella sandwich in half, but the other gets to choose which side they get first. 🙂

  2. It looks like the commodity interests are taking aim at their feet again. If ecological sustainability is not authorized by law, than certainly social and economic sustainability are not either (but ecological diversity is required, and I don’t see a counterpart on the social/economic side). I like their concept of defining salvage and sanitation harvesting as a planned method of growing a crop of trees, though ;-).

  3. Wouldn’t “back to the future” be applicable here? The Planning Rule attempts to be forward-looking in its intent, but critics (from many sides) are not satisfied with the departure from “what we used to do”. Where does innovation and creativity stand here?

    • That is one of the reasons why the Planning Rule seems inconsistent and subject to battles in determining intent. It seems there are conflicting concepts, and both sides will try to claim them as their own, supporting their point of view. It almost seems as if confusion was their intent. Both sides see this uncertainty as a threat to “what they used to do”. The jury is still out on whether the Planning Rule helps or hinders each sides’ strategies. I really doubt that time and effort will be saved in new Forest Plans.

      • Agree that we’re in a “wait and see” situation on whether the Planning Rule’s outcomes match the predictions by government officials. However, I remain optimistic that a collaborative approach to making choices on how to manage public land will outperform the 1982 Planning Rule with all its analytical requirements that were suited to the mindset in the ’80s, but are largely irrelevant now. What will be interesting is whether the ‘silent majority’ of the middle ground takes advantage of the opportunities to be involved and start influencing the discussion instead of the polar ends. History tells me that it will take time for this to evolve, but at least the opportunity is provided to make that change.

  4. I think the “silent majority” has spoken in Montana, Idaho, and Colorado, but as long as the radical enviro end of the pole can litigate to usurp the silent majority…it’s all a moot point worthy only of feel good musings. But don’t let my pessimism get ya down Tony, I think you’re right in that the will of the silent majority will eventually prevail and there has been great strides in “collaborative” common ground compromise(I just love alliteration).

    Meanwhile the growing disparity between “litigated VS. Non-litigated “similar treatment” timber sale projects in Montana and Colorado gets larger and larger. Last night I was reading an EA from Colorado that would salvage log MPB killed lodgepole on 2800 acres. The EA ran to 42 pages. A new world record for the “smallest EA” I’ve ever seen. I also read an EIS on the Helena NF in Montana that would also salvage log MPB killed lodgepole on half as many acres, and it ran to 729 pages….a new world record for the longest EIS I’ve ever seen.

    I guess those darned Coloradan’s just keep breaking the law…or perhaps the grizzly bear deserves an extra 687 pages. Once again…we’re not talking some radical “Red state” rednecks here…the Colorado clearcuts are 20 miles north of the trendy ski town of Steamboat Springs. It has nothing to do with “following the law” or “seeking common ground”…and the sooner the “collaborators” get that through their head…the better.

    Of course the 729 pages in Montana is an attempt to cover all the bases in Judge Molloy’s court…but I wonder, I just wonder… if the EIS has adequately analyzed the effects of “overhead Jet traffic” on the grizzly bear. What a sham. In a few weeks, the results of the fiscal year 2013 “cut and sold” report will come out and we’ll get to see the results of the dismal Montana timber sale program…and thus the true reason for litigation to make the USFS follow the law.

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