Judge says he “must not assume the role of a scientist”

The last line in the article below is interesting:

The judge said he owes “substantial deference” to the agency’s analysis and “must not assume the role of a scientist.”

http://www.capitalpress.com/article/20131217/ARTICLE/131219907/1318

 

Judge rejects challenge of logging project

Mateusz Perkowski
Published: December 17. 2013 9:34AM
A federal judge has dismissed an environmental lawsuit challenging a timber sale in the Nez Perce National Forest.

A federal judge has refused to stop timber harvest and fuel reduction treatments on 2,600 acres of an Idaho national forest.

Last year, the U.S. Forest Service approved the Little Slate Project in the Nez Perce National Forest to improve aquatic habitats and other aspects of forest health.

Environmental groups — Alliance for the Wild Rockies and Friends of the Clearwater — opposed logging in the area and filed a legal complaint seeking an injunction against the project.

U.S. Magistrate Judge Mikel Williams has denied their request and dismissed the case, ruling that the agency properly followed environmental laws.

“After conducting the mandated substantial inquiry and probing review, the court finds that the defendants did not act arbitrarily or capriciously in approving the Little Slate Project,” the ruling said.

The plaintiffs accused the Forest Service of failing to fully consider and disclose environmental impacts, protect biodiversity and mitigate harm to the habitat of federally protected species.

For example, the environmentalists claimed the agency didn’t take a “hard look” at the negative effects on the Canada lynx, which is listed as threatened under the federal Endangered Species Act.

However, the judge ruled that the Forest Service wasn’t required to supplement its environmental review due to unverified sightings of the animal.

The agency was also reasonable in determining that the project would not threaten the existence of “indicator species,” like the goshawk and pileated woodpecker.

Williams rejected arguments that the Forest Service’s data about the impacts to threatened bull trout were limited and outdated. He also dismissed criticism of the agency’s hydrological models.

“Plaintiffs’ failure to identify any better science or to point that any other existing data is available makes this claim a ‘non-starter,’” the ruling said.

The judge said he owes “substantial deference” to the agency’s analysis and “must not assume the role of a scientist.”

21 Comments

    • I think we might be on the same page again Matthew, or close. The part I liked was the second to last sentence:

      “Plaintiffs’ failure to identify any better science or to point that any other existing data is available makes this claim a ‘non-starter,’” the ruling said.

      That seems to infer that the judge can take into account “better science” than that offered up by the agencies. I think Guy posted something here a while back in which the author explained that judges were required to accept agency science as the “best available,” thereby discounting the possibility of better information being considered. Most troublesome, of course, is that a judge is in a position to begin making scientific determinations in the first place: http://www.orww.org/B&B_Complex/Policy/NEPA_1969/Issues/Key_People/Bill_Hagenstein/Videos_20030522/Lawyers_&_Foresters.mpg

      • If I was an activist, I’m very sure I could delay or eliminate a great many projects, where the Forest Service doesn’t follow its own rules, policies and protocols. Of course, I am not going to reveal this “magic bullet” but, let’s just assume that they will remain susceptible to this problem until they do what they say they will do. Yes, it will be costly to follow those guidelines, unless they decide to change them, risking further court battles.

        If I can identify this problem, why can’t others (both sides) see it, too?

        • Hi Larry,

          Would you mind saying some more about what you mean by this post? I’m particularly interested in looking at this from a systemic viewpoint if possible. In a separate post, I’m asking about the monitoring and assessment program within the FS, which does not appear to be funded well (at least that’s my understanding to date). I’m curious to learn more from your perspective in relation to your last comment here. Thanks.

          • While I am not going to elaborate on how the Forest Service falls short, I will say that monitoring would definitely help, Mike. I don’t agree with the intensity of the guidelines they don’t meet but, I also think those guidelines are not realistic, or necessarily needed at that intensity. I’m sure that the Forest Service feels that what they are doing is “good enough”.

            • Thanks Larry. You touch on an important point when you say the FS probably believes it is doing “good enough” in terms of monitoring and data collection with what it is currently doing. I would only slightly amend that statement by saying that most folks in the agency believe they are doing “good enough”, considering the budget and “other priorities” with which they have to work each year.

              In my view, this issue is not about impugning the integrity of USFS employees and whether they want to do the best work possible. Its about understanding the cultural biases within the agency, and political constraints the agency is facing. These two factors are interrelated and symbiotic.

              In other words, budgeting priorities are shaped by the politics of managing National Forest system lands, which implicates the biases of key congressionals. Many of the congressional reps in western states continue to see the world through traditional lenses and are always asking what tangible “product” they are getting for the tax-payer investment in the USFS. (This is a legitimate but incomplete question or focus, in my view).

              The priorities of the budget drive where the agency focuses its time and energy, but they also shape and influence the culture mindset of the agency as well. Over time, for instance, those who perform well in a context driven by an annual cycle of short-term production priorities are highlighted and often sought after for promotion, particularly for line officer positions (generally speaking). Given the organizational structure of the agency, line officers possess greater potential to determine how the agency will carry out the priorities established through the budgeting process than other positions.

              The effect of this dynamic is that those with a longer-term disposition (i.e. ‘ologists and conservation minded-foresters), are left to “make do” with what opportunities remain to influence the focus and investments of the agency, and it seems this is where longer-term monitoring might currently fall.

              This is not to say that line officers and others who perform well within the political/cultural climate of the agency aren’t also doing their best in terms of “caring for the land and serving the people”. As Sharon pointed out in a different post, there are many line officers that have learned to take a very pragmatic approach in doing their jobs, and are also simply making the best of a “less than ideal” situation.

              Nonetheless, what I see are sometimes subtle but always important agency biases that flow from this dynamic, for better or worse. This is why I believe this is truly a systemic issue that results from a complex and non-linear political/cultural context. I know my perspective is incomplete and perhaps even off-base, but this is what I see at this point. I’d be interested in hearing other perspectives.

              • Mike: You make the curious statement that: “Many of the congressional reps in western states continue to see the world through traditional lenses,” and seem to imply that is not a good thing — or at least an outdated perspective. What is wrong with “tradition”? Also, what is wrong with “products”? If we are truly “products of our environment” (the old nature vs. nurture argument), what can be wrong with being productive? And why is that an “incomplete” perspective?

                • Hi Bob,

                  Thanks for the questions. There is nothing inherently wrong with a traditional perspective. The problem arises when it does not also recognize that the trend in the west and across the United States for quite some time has been away from exclusively traditional perspectives for some time now. I personally believe it is a “yes/and” sort of situation. YES, we can produce products (“traditional”) off public lands (and I would add that we “should”); AND we need to do so in a way that honors and respects many other values, both tangible and intangible, that are not “production” oriented, at least in the traditional sense of that word. Thus, to define budget priorities more narrowly around tangible products (especially on an annual cycle basis) is “a legitimate but incomplete question or focus, in my view”. Hope that clarifies…

                  • Mike: Kind of, but we might be playing semantics. Who are these people that are ignoring “trends in the west” (in your perspective) and embracing “exclusively traditional perspectives” instead? I would think that the “traditional” perspective would be along the lines of Multiple Use, which has been in effect for nearly 40 years. If this is truly a systemic problem, how can it be fixed? Certainly a carefully designed monitoring plan would add little, if anything, to the Forest Service budget and could be very helpful in identifying many of the negative outcomes of this problem so that they can be better addressed. Or am I missing something here?

                    • Hi Bob,

                      Now I am somewhat confused…:) and we may indeed be playing with semantics…But I do want to clarify, I am not suggesting that anyone is completely ignoring “trends in the west” as I see them (which is to say that it at least seems as though there is much greater diversity of perspective and values in the west today than there was 40 years ago). What I AM suggesting is that there are biases in the budget of the FS that flow from the political opportunity that “traditionally” minded congressionals see when they are establishing budgetary priorities.

                      There is certainly value in production, and this can come in the form of timber, recreational opportunities, and even wildlife restoration efforts, among others. But the effect of this annual “production cycle” puts the organization in a position of focusing on short-term tangible production goals, often at the expense of longer-term planning and management. I am further suggesting that the pressures of this “annual production cycle” have contributed to the development of a particular cultural bias within the agency, which naturally highlights short-term objectives, but doesn’t appear to invest much in the way of longer-term monitoring.

                      Because of these systemic dynamics, the agency is often in the position of defending decisions with “less than ideal” long-term information to assess the direct and cumulative effects of their projects. Even if we disagree on some of these things, Bob, I do agree with your take that a well-designed, comprehensive, long-term monitoring program would go a long way toward resolving some of these issues. The question, as you say, is how we bring this into a reality…

                  • Regions often have meetings that include assembling all of the Forest Timber Management Officers (or whatever they are called, these days), where they divide up budget money for timber projects. Some Forests are blessed with quality TMO’s, who get more products and accomplishments in the last years, for the dollars they had. A similar process occurs on each Forest, with their corresponding District TMO’s. I have worked on several Forests who did have those good folks. It would be very interesting to sit in on those meetings, to see how those lesser-performing units try to change their “fortunes”. I’m sure there is a lot of “spin” in efforts to get more funding, and a lot of excuses about why things went bad.

                    Where I live, the local Forest has consistently under-performed, even when Congress throws money at them. From top to bottom, they have trouble meeting their targets, and the reasons are more complex than you might think. They have no consistent leadership and employees don’t appear to be very loyal, looking for opportunities to get promoted and relocated. This attitude has been entrenched for more than 20 years, now, and there doesn’t appear to be any way out. I applied for temporary jobs there, and they seem to have no need for a 25 year veteran, skilled in many types of timber jobs. Instead, they will spend premium prices for private contractors to do the work, with varied results. They have done some recent highly-visual projects in road corridors but, the board feet doesn’t add up to much.

                    Just because “end runs” around environmental rules worked 20 years ago, that doesn’t mean they should keep “gambling” and hoping they can do it again. You need to have good people, working hard to craft sensible and productive projects that can survive the courts. Those people have to be happy with their leadership and work as a team with the ologists to do what is right for the land. It sounds easier than it really is, and many factors are involved with keeping people happy and content to stay where they are, performing above their grade levels, whether they are temporary employees, or GS-11 ologists.

    • It might mean in this case that the FS did enough of an analysis that the judge chose not to second guess. And from what others have said, it appears that substantial contrary scientific evidence was not offered by the plaintiffs. (??) If the FS had an obviously weak analysis, it might have stood out but not in this case.

  1. Who is the arbiter of science? Is there one or several, or none? This judge declared that it was not his job to arbitrate dueling science. I have to deduce, for myself, that the judge actually is asking for better, definitive science, which was not presented.

    Offering doubt in lieu of better “science” might have run its course. I don’t think I can read into his declarations that peer reviewed science, which clearly shows a new vision, a more complete picture, a certain better explanation or result, will not be considered by courts, including his. My reading would be that you live with the science you have, not the science you want.

    “Protect biodiversity” is a pretty amorphous blob of words, as is “mitigate harm to the habitat.” Relying on the vagaries of weather and fire to “protect” habitat might no longer hold water, and assuming any logging will with certainty degrade habitat is not valid when the USFS is charged with selling timber as a function its multiple land management duties. They “have to get there from here.”

    There is little wisdom in doing nothing, because we don’t experience a result, be it success or failure. Living is learning. Doing nothing deadens our lives. Reliance on “paint by the numbers” timber sale appeal phrases and accusations evidently showed this judge a need for more facts to disprove the USFS handbooks, developed over decades of appeals and lawsuit results which produced a need for the USFS to invest in more due diligence. That effort has been made. Is being made.

    I would characterize the judge’s opinion as one that mandates more science and hard facts to gain injunctive relief, which I have to assume the appellants do have and should have been able to present but did not. He was looking for more data, not compelling verbiage. I don’t buy Bob’s contention that he was arbitrating science, because the only science presented was the USFS’s lengthy planning document.

    If you don’t have the lynx baits, trail cams, and hair collectors out there, and are not vigorously looking for lynx, there is no lynx data to prove the lynx are there. That only leaves they are not there for the judge to consider. One lynx data collection attempt from my end of the world (R6) was created to produce a false positive, which is called “lying” or “fraud” in layman’s terms. But the new wolverine data is real, with photos, hair, dna, all of which produces new data for consideration. It is real, not “suppose if” reasoning.

    My thinking is this judge stepped out of the ethereal world of past appeals, and into the real world with this opinion. Demanding more rigor can’t hurt any part of the process or the passions, of the users or the protectors.

  2. It is more likely that the lower court is siding with the Forest Service because of two things. One of them is a local politics angle, which the Judge is aligned with and, the Forest Service’s ability to fulfill a large majority of the issues within their plans. Now, when the litigators go to Appeals Court, the roles will probably be reversed. We’ve seen it happen many times in the past, with partisan politics playing big roles in both courts. It seems that objectivity isn’t as important to Judges as it used to be, in the past. Activist Judges prefer to think of themselves as “counterweights”, using their power to “make things right”, as they see it through their political eyes.

    Example: A court-ordered new salvage marking guidelines were first used on one of my projects. The Ninth Circuit Court couldn’t shoot them down, instead, labeling them as “confusing” and invalid, although the lower court upheld the project. The Forest Service needs to take those lower court decisions and run with them, before the eco’s can get the Appeals Court Judges they want. If the Forest Service can fell all of the salvage trees in a project, the case becomes moot, when it goes to Appeals Court. This strategy could work for green sales, as well.

  3. Some judicial deference to agency expertise makes sense. However, that deference should not be absolute. The courts recognize certain circumstances under which government decision-makers can be held in error and overturned. This judicial authority to second guess the agencies comes from the Administrative Procedures Act, Section 706, usefully paraphrased here:

    “An agency decision is arbitrary or capricious if: (1) the agency entirely failed to consider an important aspect of the issue; (2) the agency offered an explanation for its decision that was counter to the evidence before it; (3) the agency relied on factors that Congress did not intend for it to consider; or (4) the agency’s decision is so implausible that it could not be ascribed to the product of agency expertise.”

    Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999).

    The APA does not just allow the courts to hold the agencies accountable, it compels them to. Citizens are “entitled” to judicial review (APA, Section 702), and courts “shall” set aside agency action found to be unlawful. Complain all you want. This is established law, and it does not appear to be going away.

  4. The comments made this opinion sound interesting so I finally read it. It looks like the agency did ‘follow its own rules, policies and protocols’ (to quote Larry), including doing what they said they would do in forest plans, and so the Forest Service won.

    Bob: The public does have the right and opportunity to offer ‘better science.’ It is supposed to do that first during the agency decision process, but could then litigate an agency’s failure to take that into account. And the judge can tell an agency it should have considered the information (a process flaw), but will rarely tell them they made the wrong decision. (I’ve always thought that APA required use of best available science by requiring consideration of important aspects of decisions.)

    Greg, John and 2ndLaw: I think those are pretty good summaries of the role of science in this case. I’ve ended up looking at the burden on the agency this way. First they have to consider all relevant factors (and not consider others). If they miss available science they could be in trouble (especially if someone has pointed it out to them). (If it’s not available, there’s a provision in NEPA that excuses acquiring more data.) Then they have to provide a rational explanation of how they used that information. If they make it past the first step (including documenting it in the administrative record), a judge will not usually stop them at the second (for example the judge’s discussion of how the FS viewed the Huntington report). Here, plaintiffs couldn’t come up with effects or available science that were not considered.

    Mike: I like your observations about short-term production being favored over long-term sustainability in the budget process (and therefore agency culture). That is going to continue to be a barrier to accomplishing the sustainability goals of forest planning, and it’s a reason why I would like to see plans incorporate standards tying future actions to past monitoring. This would address the court’s comment that, “Plaintiffs have cited no authority for the fact (sic) that the Forest Service lacks funds to complete the recommended planning level monitoring should prevent project approval.”

    This case also pointed out how the 2012 planning rule has actually reduced the importance of monitoring by precluding project-level challenges for failure to implement a plan’s monitoring requirements. Plaintiffs made an interesting argument that LMP monitoring requirements should create an exception to the discretion to acquire new information. The court did not address this directly, but would probably have included this as one of things that the 2012 planning rule removed any obligation for.

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