Black Hills and Region 1 Comparison : Appeals and Litigation

Black Hills FACA Committee

Black Hills FACA Committee

This is from Barry Wynsma in Evergreen. Thanks to Jim Petersen for permission to repost. We have discussed the Black Hills success story in terms of litigation and appeals before. here and here. There are several other posts about the Hills you can find by searching in the search box.

There are many notable things about the Hills, including the fact that they have a formal FACA committee (photo above).

It’s fairly long and worth reading in its entirety, but I focused on this section that talks about litigation. Feel free to comment on any of the other parts as well.

The Alliance for The Wild Rockies, The Wild West Institute, The Lands Council, The Native Ecosystems Council, Friends of the Clearwater, Etcetera…

Another reason – maybe the reason – why comparing the Northern Region with the Black Hills National forest may not be equitable is that the sheer number of species that have to be dealt with in Region 1 makes its national forests huge and easy targets for environmentalists who oppose active forest management.

During fiscal year 2012, there were 140 appeals filed in the Northern Region5. As of August of 2013, 44 more appeals were filed in the Northern Region. Of those, 16 were against projects that included commercial sales of forest products [personal communication with FS]. Also as of August 2012, personnel in the R1 regional office told me the appeals/objections were holding up about 225 million board feet of commercial timber sales.

By comparison, the Black Hills National Forest received 3 appeals [actually objections under the “218” rules] in 2012 and none in 2013.

In referencing the Forest Service Appeals and Litigation website6 I can see that in the Northern Region, the Alliance for the Wild Rockies, The Land’s Council, Friends of the Clearwater and the Native Ecosystems Council seem to like to appeal all projects that involve the commercial sale of forest products. Readers that check out this website will also see other groups and individuals that have made it their agenda to appeal commercial timber sale projects.

In comparison and referencing the same Forest Service website, Friends of the Norbeck, Prairie Hills Audubon Society and the Biodiversity Conservation Alliance appears to be the only environmental groups that occasionally appeal projects on the Black Hills National Forest.

The Government Accountability Office [GAO] provided data on Forest Service appeals and litigation for the period 2006-20087 for fuels reduction projects, not necessarily including all projects that involve commercial sale of forest products.

Excerpted from the GAO report are the following findings:

“In fiscal years 2006 through 2008, the Forest Service issued 1,415 decisions involving fuel reduction activities, covering 10.5 million acres.

Of this total, 1,191 decisions, covering about 9 million acres, were subject to appeal and 217-about 18 percent-were appealed. Another 121 decisions, covering about 1.2 million acres, were subject to objection and 49-about 40 percent-were objected to. The remaining 103 decisions were exempt from both objection and appeal. Finally, 29 decisions-about 2 percent of all decisions-were litigated, involving about 124,000 acres.

For 54 percent of the appeals filed, the Forest Service allowed the project to proceed without changes; 7 percent required some changes before being implemented; and 8 percent were not allowed to be implemented. The remaining appeals were generally dismissed for procedural reasons or withdrawn before they could be resolved. Regarding objections, 37 percent of objections resulted in no change to a final decision; 35 percent resulted in a change to a final decision or additional analysis on the part of the Forest Service; and the remaining 28 percent were set aside from review for procedural reasons or addressed in some other way. And finally, of the 29 decisions that were litigated, lawsuits on 21 decisions have been resolved, and 8 are ongoing. Of the lawsuits that have been resolved, the parties settled 3 decisions, 8 were decided in favor of the plaintiffs, and 10 were decided in favor of the Forest Service. All appeals and objections were processed within prescribed time frames-generally, within 90 days of a decision (for appeals), or within 60 days of the legal notice of a proposed decision (for objections).”

Note that this report found that of the projects involved in this report, 18 percent were appealed, 40 percent were objected to and “only” about two percent were litigated. Some environmentalists like to use this two percent figure to downplay the significance of their commercial timber sale appeals.

While this may be true on its face, it reminds me of the Forest Service claim that more than 90 percent of all wildfires in the U.S. each year are put out before they become catastrophic. Whether it’s a big fire or a big lawsuit, the two percent we are discussing is causing significant damage to the environment, to the ability for the Forest Service to manage timber stands that are suitable for commercial timber harvests and to the economic stability of the communities surrounded by national forests.

Looking at the GAO report again, Tables 7 and 8 show that the top five “serial” appellants [to coin Jim Petersen’s phrase] in the Northern Region for the period 2006-2008 includes the Alliance for the Wild Rockies with 35 appeals/objections, the Wild West Institute with 26 appeals/objections, The Land’s Council with 25 appeals/objections, Native Ecosystems Council with 13 appeals/objections and Friends of the Clearwater with 8 appeals/objections. The Northern Region had a total of 187 appeals/objections during this period from the above mentioned and other groups and individuals.

Tables 7 and 8 also provide comparative data for the Rocky Mountain Region, but not the Black Hills National Forest specifically. Even so, the entire region – which includes the BHNF – saw only 44 appeals/objections during the same time frame. The appeals were filed by the following environmental groups: Biodiversity Conservation Alliance, 13 appeals/objections; Colorado Wild, 5 appeals/objections; Prairie Hills Audubon Society, 4 appeals; Western Watersheds Project, 1 appeal; Great Old Broads for Wilderness, 1 objection, Sierra Club, 1 objection, Sinapu, 1 objection, Wilderness Workshop, 1 objection and; Wild Connections, 1 appeal.

All these appeals, objections and a small percentage of litigation has a catastrophic affect not just on those projects that have been directly targeted, but more often than not, they indirectly effect most if not all projects nationally that are undergoing environmental analysis and the NEPA process. This is especially true for those projects that entail commercial timber harvests. There is a ripple effect on the recommended level of analysis needed to satisfy the latest court case decisions in order to head off the future threat of litigation.

Because appeals and litigation often involve the issues of threatened, endangered and sensitive species (based on my personal experience for the past 23 years as a project leader and 33 years as a Forest Service employee), you can plainly see that those forests and regions that have more listed species will have a correspondingly higher level of difficulty navigating the appeals/objection/litigation process.

Barry was a 33 year employee of the Forest Service, the last 23 as a small sales and special forest products project leader on the Bonners Ferry Ranger District, Idaho Panhandle NF. I specialized in small tree and biomass utilization projects and was also a co-author of the Forest Service’s Woody Biomass Utilization Desk Guide.

21 Comments

  1. Huh?

    Is it just me, or does most of this post read like a bunch of incomplete sentences and an overload of stats and figures? Guess I’m used to that with some of Barry Wynsma’s writings.

    And why is my organization, WildWest Institute, mentioned? Because we filed some appeals 8 years ago?

    And what’s the use of looking at the number of appeals and objections from 8 years ago?

    And isn’t the appeals and objection process part of the formal public input/review process established by the Congress of the United States of America? Therefore, is it correct to claim that the formal public input/review process established by Congress is “holding up about 225 million board feet of commercial timber sales?” How can a public input/review process established by Congress “hold” up anything? Unless, of course, you want no public input/review NEPA process.

    And what’s the use of comparing a single National Forest (the largely sanitized and sterile Black Hills) with the Forest Service’s Northern Region, which encompasses 25 million acres, some of the wildest chunks of nature found in the entire US Forest Service system (outside of Alaska) and is spread over 5 states and includes 12 National Forests and the National Grasslands in North Dakota and northwestern South Dakota?

    And as far as what I figure is Barry’s conclusion….

    “Because appeals and litigation often involve the issues of threatened, endangered and sensitive species you can plainly see that those forests and regions that have more listed species will have a correspondingly higher level of difficulty navigating the appeals/objection/litigation process.”

    ….Isn’t that pretty much what Alliance for Wild Rockies, Friends of the Clearwater, The Lands Council, etc would tell you? ie That the fact that the northern Rockies have more threatened, endangered and sensitive species is one reason Forest Service logging/roadbuilding/grazing/development projects in the northern Rockies are appealed more than in National Forests or Regions where there aren’t as many threatened, endangered and sensitive species (for a variety of reasons)?

    So what’s Barry’s solution? More logging/roadbuilding/grazing/development in the habitat of threatened, endangered and sensitive species? Doing away with the ESA? Doing away with the public appeals/objection process?

  2. I too found Mr. Wynsma’s comments somewhat rambling and unfocused, especially given his many years as a USFS project leader. As Matthew said, an appeal (or objection) is part of the congressionally mandated public review and input process for major federal actions (as a timber harvest usually is). As a project leader of 23 years, surely Mr. Wynsma he understands that?

    And as he points out, only a minority of decisions get appealed, and then only a minority of those appeals/objections ever proceed to litigation. As he also noted, appeals/objections generally are finished within 90 (now 60) days after the decision. That doesn’t really seem like an insurmountable burden.

    To say that some environmental groups oppose “active forest management” is probably less accurate than saying they oppose “inept forest management”, but unfortunately sometimes the distinction gets blurred. I realize that many will disagree with that, and honest disagreement is a valid perspective, but the FS reputation regarding forest management (and particularly wildlife/habitat management) didn’t arise de novo.

    Barry Wynsma is obviously correct that forests (e.g. in Region 1) with more TES species and critical habitat (and also more roadless/unroaded) will have correspondingly more challenges navigating appeals etc. But those same types of challenges also apply to all the years of forest management that precede the scoping of a timber sale. A lot more FS attention during that timeframe might go a long way towards reducing the number of appeals and litigated sales, and especially the number of FS actions that are found to not be legally justified.

  3. I remind folks that around 95% of all prescribed fire fuels reduction projects occur in the South (and few are ever appealed or litigated). I’d like to see the GAO narrow their study to only include commercial fuels reduction projects, eliminating most of the non-controversial projects from the stats. It is important that the public knows the real facts about what has been happening, and what has been said to be happening.

    • yes, that would be interesting. Here’s a GAO report from a few years back (maybe there’s a more current one out there, didn’t find it) that includes some breakdown by type of project, but also by Region which might address some of those same questions. http://www.gao.gov/new.items/d10337.pdf

      Looks like for this time period (see p. 56) that Region 1 did indeed have highest percentage of appealed projects, and also highest percentage of litigated projects, of all the regions. There’s a lot to digest in the report, including some info on use of prescribed fire. Probably to get the full big picture, one might want to also factor in categorical exclusions… and then how many of those get challenged…. big job, but still interesting.

  4. I would like to see the Equal Access to Justice Act awards by Region, which would be in the vein of “show me the money.” Appeals cannot happen in an economic black hole. They cost real money. Those appealing do so at cost. Money is a finite commodity. So, instead of following the filings of the paper chase, report the awards of EAJA funds. That will be the measure of success. And future efforts. Show the balance sheet in this appeals industry. Who pays real money, and who gets money from the US Justice Dept., in the appeals process to solution. How much of this exercise in the peoples’ right to appeal is paid for by taxpayers, and what do “for profit” entities get for their efforts?

    • Appeals, whether successful or not, don’t get EAJA funds. Which is why they tend to be written (e.g. in the examples that Barry Wynsma cited that I know of, such as AWR, NEC, FOC) by “civilians”. No money changes hands either way in an appeal, and hiring an attorney to work on one would make little economic sense. If that’s a “for profit entity” then it’s not much of a business model. Where EAJA funds do (not always) get awarded is after a successful lawsuit (different from an appeal), and only where a federal judge rules that the FS and/or FWS acted against the law (or failed to do something required by law). So, taxpayers are paying for the actions/inactions of the federal lawbreakers, folks may not agree with particular verdicts but that’s the bottom line. Still, the “entities” don’t get EAJA funds (beyond reimbursement for filing fees etc) unless they have staff attorneys, which the groups mentioned above do not have. In a winning case, EAJA funds will pay attorney fees for a (typically) contract attorney. In a losing case, too bad. The “for-profit enviros” myth doesn’t stand up to the facts, but that doesn’t seem to hurt its continuing popularity.

    • Once again, the public appeals process is part of the public process established by the Congress of the United States of America. Complaining about citizens, organizations or businesses that appeal Forest Service decisions strikes me as sort of on par with complaining about election results because too many people voted.

      There also has never been one cent awarded to anyone or any organization that filled a successful appeal of a proposed Forest Service project. You apparently are confusing appeals with litigation, which I have noticed over the years is a very common mistake some people keep making.

      It’s also worth pointing out that a boat load of the appeals the Forest Service gets annually actually have nothing to do with timber sales and environmental groups. Rather, it’s ranchers who appeal Forest Service grazing allotment plans. Or outfitters who appeal Forest Service outfitting plans. Or certain recreationists who appeal recreation decisions. Or people who appeal various Special Use permit decisions.

      For example, assuming the USFS Northern Region Appeals site is accurate, approximately 50% of the public appeals filed in the Northern Region during 2013 1) had nothing to do with timber sales and 2) weren’t even filed by environmental groups or activists.

      Yet, ironically, those who often complain about citizens or environmental groups appealing a timber sale never seem to muster up many complaints about the “serial appealers” in the ranching, outfitting, recreation or “Special Use” community.

      If we’re going to have a debate about the public appeals process and Forest Service projects, let’s have the discussion based on facts based on the Forest Service’s own information. Thanks.

  5. “All these appeals, objections and a small percentage of litigation has a catastrophic affect not just on those projects that have been directly targeted, but more often than not, they indirectly effect (sic) most if not all projects nationally that are undergoing environmental analysis and the NEPA process.”

    I was once told in so many words by the Forest Service that court decisions (and certainly appeal decisions by lower level managers) do not make policy changes. The FS will surely try to limit the ‘damage’ to as small of a geographic area as possible (especially by court district or circuit). (There are a very few cases that are game changers.) On the other hand, when the Forest Service wins an argument it doesn’t hesitate to try it again elsewhere (noticeable recently is their effort to use Supreme Court opinions on standing to keep its decisions out of court). So I would say this criticism is more valid in the opposite direction.

    • Jon… one of my wise Forest Service friends once said to me.. “the truth is in behavior not in words.”

      First, let’s separate appeals from court cases. The impact of appeals is different and probably too complex to be discussed here. But court settlements and decisions make differences in policy.

      For example, we are discussing what to do about documentation for a certain kind of decision. There are many pros and cons but one of the attorneys says, “that policy option is off the table because we already agreed to doing that because we settled one case on the X forest by doing Y documentation.”

      Or you can look at the case of the southern California Forest Plans. They did not have as much roadless as the litigants wanted so they are going back to put in more. Does that “change policy”?

      I think maybe you are thinking of different kinds of policy than I am. The reason environmental groups use court cases is precisely to change policy, so if there efforts did not change it, what would be the point?

      From the horse’s mouth CBD here’s the link.

      ABOUT OUR Public Lands WORK

      As the coming century of global warming threatens to accelerate the extinction crisis, we believe the highest and best use of wild lands is to provide safe harbor for species by protecting the ecological systems upon which they and we ultimately depend. To this end, our advocacy directly confronts land uses that harm species and ecosystems — from off-road vehicle use and livestock grazing to industrial logging and uranium and fossil fuel extraction — while advancing precedent-setting litigation, policies, and strategic collaborations to usher in a hopeful new era of biodiversity conservation for our wildlands. We work toward a future in which species and ecosystems are finally afforded primacy among public lands priorities.
      HOW WE DO IT

      • Scientific research
      • Litigation
      • Analyzing and commenting on agency decisions
      • Administrative appeals
      • Grassroots organizing
      • Creative media

      While I don’t agree with these folks on many of their efforts, at least they are honest about how they say, and are, using tools such as science and litigation in the service of promoting their agenda. They are very good at “actions match words.”

      • Lawsuits are certainly filed to change specific decisions. Sometimes they are part of a broader litigation strategy to change policy, which means changing future decisions. I have not seen settlement agreements that extend beyond the decision being litigated, so I assume they are not common (and limited to within a particular jurisdiction). For cases decided by a judge, I’ve described my experience above and I think that is the norm. An individual case rarely (‘catastrophically’) changes national policy.

        • I have seen where a court ordered a new set of mortality guidelines for fire salvage logging. All National Forests had to wait for new guidelines, or only cut completely dead trees. The Biscuit Fire was one of those situations where the Forest chose to not cut any trees with green needles, away from roadside hazard tree projects. I worked on the Power Fire salvage, where the new guidelines were first used and, of course, litigated.

          (Yes, the new guidelines were way too conservative, as there were a significant amount of mostly-green trees that died off, all at once, during the summer following the fire. These occurred in units that were considered to be “low intensity”.)

          • I think the typical lawsuit involves a single project (which I am saying doesn’t necessarily affect other projects – contrary to Wynsma’s original assertion). If plaintiffs challenge a bigger decision, like a forest plan or a national regulation (I’m thinking the mortality guidelines were the latter?), then yes that would affect future projects.

  6. Sharon, Thanks for posting the link to Barry’s entire article from Evergreen Mag.

    By doing so, it affords us an opportunity to see that Barry’s “solution” (posted below) is to exclude wide swaths of America’s public lands from NEPA/ESA requirements. I always love it when former Forest Service leaders come out so strongly against public input, analyzing environmental impacts and protecting endangered species. I can only hope that anyone else in the Forest Service who feels the same way as Barry is up for retirement real soon. As a US Taxpayer, I’d much rather give these guys their cushy public employee retirement/health care package, than actually have them in any sort of leadership role directing the (mis) management of America’s public lands. Thanks.

    A step in the right direction is currently being moved through Congress. H.R. 1526, the “Restoring Healthy Forests for Healthy Communities Act,” recently passed in the House of Representatives, but has stalled in the Senate. I support the efforts of this bill, which includes expanded use of categorical exclusions, appeal bonds, would require the establishment of at least one Forest Reserve Revenue Area on each forest and would establish demonstration areas in each state that would be managed by state rules. The current legislation does not go as far as I suggested which would exclude these areas from the NEPA/ESA requirements. I’d recommend that the public contact their Senators and tell them that you support H.R. 1526 and to approve the bill in the Senate.

    • Matthew… Barry is making a lot of points. You may disagree with that one, but your logic seems to be:

      Barry disagrees with me
      Therefore Barry and his ilk should not be working on public lands

      The beauty and challenge of federal employment is that each administration is elected and decides which way to go. And there are always people who disagree and agree with that way. It helps feds to see that “the other side” is not as crazy as portrayed in the media, and the differences are not as great as those who make money or gain power by focusing on the differences would have you believe.

  7. The appeals/litigation process is the improper place to debate values, which are the source of the conflict…this conflict comes from people having different values about public lands and how people should use them. If a government agency breaks a law in executing a program, then yes, an administrative review (appeals, for example) or litigation is the appropriate counteraction. However, actually proving a law violation (say, the Clean Water Act, Endangered Species Act, or Clean Air Act) associated with natural resource management is difficult and that is why many of the court decisions focus on procedural process rather than the outcome of whether the government action on public lands actually dirtied water, unduly killed species, or polluted air. Just because the Forest Service loses a court case over a NEPA violation does not imply that the actual action proposed would break any environmental law.

    No, the value debate should be in a public forum with opportunity for all interested to participate. It may not be the ‘warm & fuzzy’ atmosphere we seek to converse with others, but it’s the one that we need to have.

  8. Speaking of warm and fuzzy, we had our Meridian Collaborative last night. I was in Veg and Habitat and really dismantled the fire and fuels sections. Had help, tag teaming with others of like mind, not just timber beasts.
    Of interest was, the hardest line Greens there both bailed and left, I guess because they plan to sue anyway.
    I also brought up Wynsma’s observation that R1 is being carried by the BHNF even though the rest of the region HAS to have more-productive forest lands. A lot of folks were shaking their heads at that one.

    • Thanks for pointing out that the Black Hills is in region 2, Sharon. Turns out, that’s not the only thing that Dave was mistaken about.

      I got in touch with a few other people who attended the Flathead National Forest/Meridian Forest Plan Collaborative meeting and heard from them that Dave didn’t dismantle anything and that several people effectively countered Dave’s usual talking points on fire, fuels, and active mismanagement as well as Clarice Ryan and Ron Buntemeyer’s rants about all things environmental.

      I also heard that Dave and others were rebutted by the Forest Service when asked by others if what some of the no-more-fires-folks wanted was realistic and the Forest Service saying no to it. Perhaps Dave was in the bathroom and missed this part of the meeting.

      I also heard a general ‘consensus’ from the people I contacted that the meeting didn’t accomplish much, as it rambled all over the map without much of an organized game plan to effectively cover topics and with not much for constructive facilitation. Hey, but at least the Forest Service and Meridian are getting paid, right?

      Finally, I’ll bet Dave a beverage that his buddies at Montanans for Multiple Use file a lawsuit against the Flathead National Forest Plan revision.

  9. Here’s another perspective on how the Flathead National Forest/Meridian Forest Plan Collaborative meetings/process is playing out.

    I have been disappointed in both the FNF and Meridian’s websites with scattershot postings without informing anyone (Meridian) and the Flathead’s alerts for a posting that I then can’t find on their website. Meridian also did not post notes containing the issues that were brought up at the December meeting. Reminds me of the SWCC collaborative that still hasn’t posted minutes since August! So much for open and transparent.

    To add to Meridian’s incompetence they posted on their website the Lake County Trails Plan last week; I was intrigued since I wasn’t aware there was a trails plan. When I clicked on the link it took me to the Lake Co. Florida’s trail plan. I e-mailed Liz at Meridian last week to let her know about the error; at Wednesday’s meeting it was also mentioned to Joe Kruger at the Flathead National Forest. To date they haven’t removed it. (See: http://merid.org/FNFplanrevision/Recreation_Resources.aspx).

    Like I said, at least the Forest Service employees and Meridian employees are getting paid for managing this “collaboration,” right?

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