Twenty Years of Forest Service Land Management Litigation

Folks on this blog may be interested in this paper: “Twenty Years of Forest Service Land Management Litigation,” by Amanda M.A. Miner, Robert W. Malmsheimer, and Denise M. Keele, Journal of Forestry, January 2014.

I haven’t finished reading it yet, but this long paper has a wealth of data and analysis on the topic. Here’s the abstract:

This study provides a comprehensive analysis of USDA Forest Service litigation from 1989 to 2008. Using a
census and improved analyses, we document the final outcome of the 1,125 land management cases filed in
federal court. The Forest Service won 53.8% of these cases, lost 23.3%, and settled 22.9%. It won 64.0% of
the 669 cases decided by a judge based on cases’ merits. The agency was more likely to lose and settle cases
during the last 6 years; the number of cases initiated during this time varied greatly. The Pacific Northwest
region along with the Ninth Circuit Court of Appeals had the most frequent occurrence of cases. Litigants
generally challenged vegetative management (e.g., logging) projects, most often by alleging violations of
the National Environmental Policy Act and the National Forest Management Act. The results document the
continued influence of the legal system on national forest management and describe the complexity of
this litigation.

23 Comments

  1. Well, I found ONE howler already, on a discussion of why so disproportionately many cases were lost by USFS in the 9th and why so many suits are brought under the Ninth’s jurisdiction:

    “This disparity may be based on
    the nature of the agency’s resources or quality
    of its environmental analyses in this circuit
    or the competence of the circuit’s plaintiffs.”

    Nothing about the ideological makeup of the court, mostly of Left Coast urbanites? Really?

    • Keeler actually compared circuits and found not much of a difference, in a presentation at the Spokane SAF meeting. After her talk, I said I thought that the ratio of wins and losses might be the same but some of the decisions were more annoying or bizarre than other circuits and it’s not just the numbers. I think the most bizarre ones get appealed and sometimes overturned, but that is a long row to hoe to get justice.

  2. I have not read the article yet…will do so shortly…the title just makes my stomach turn. The USFS is bombarded with litigation…..instead of working with the agency so many of these litigants just sue to slow the agency down. Some are even saying that is one of their missions is to stop the USFS from doing anything. It would be great if the laws would be changed so the fat cat environmental groups would have to pay their own legal fees…maybe they would focus and think about what is really important, and not be so sue happy.

  3. Similarly, I haven’t tackler the article yet either. But I do think that there is some common threads running through lawsuits as well as common misconceptions about who files and supports the lawsuits. My experience is that people in the West, whether born and bred or recent emigrants from other states, tend to be more politically involved with natural resource issues whereas individuals from the eastern and Midwestern states tend to be more involved in social justice issues. That lawsuits are brought to bear isn’t really about “leftist urbanites” of the “ninth circuit”; it’s about the nature of drawing people in and educating then – and us – about the gap in values. As for “slowing the agency down”, of course they are. A federal agency has up to two years to develop the proposed action. The public is expected to digest it all within the 30-day Public Notice comment period and opportunities to review the draft EA or EIS. I am neither a leftist urbanite or a fat cat environmentalist BUT I have participated on IDT and noticed the lack of alternatives that do not inherently support a management goal that may not be widely supported within the management unit itself. A 64% win rate based on merit is something to be darned proud of! “The Pacific Northwest region along with the Ninth Circuit Court of Appeals had the most frequent occurrence of cases”. Take a look at where the PNW is relative to the 9th Circuit and the overwhelming majority of USFS management lands and one can readily see why lawsuits occur mostly here rather than in say, New England, Nebraska, Illinois, Kansas. The litigation is complex. The NEPA planners and IDT member have my deepest respect!

    • Take a look at where the PNW is relative to the 9th Circuit and the overwhelming majority of USFS management lands and one can readily see why lawsuits occur mostly here…

      This is a correct statement of the bottom line. The idea that the “ideological makeup of the court” determines “why so many suits are brought under the Ninth’s jurisdiction” makes no sense whatsoever. When the USFS or USFWS or a “fat cat environmental group” (an unusually ignorant description) loses a case in a federal district court in MT or ID, does anyone really believe that they get to shop around for the appeals court of their ideological choice? Lose in Idaho, appeal to the 9th. Lose in Montana, appeal to the 9th. It’s really not that complicated.

  4. This doesn’t have a lot to do with the above story…besides highlighting what happens on forests that have NO litigation. Below is a link to the Tennessee Creek Project on the White River National Forest in Colorado. Sharon might find it interesting. It’s interesting in that this is how Colorado handles things when the pine beetle threatens the municipal water supplies of Colorado Springs, Auroroa, and the Front Range in general. The USFS is proposing(Alt 2) to clearcut 30% of the 10,000 “forested acres” around Turquoise Reservoir outside Leadville Colorado. Another 30% of the lodgepole will be thinned. Evidently the MPB hasn’t killed everything yet. Now, can you imagine even proposing clearcut logging around a municipal reservoir back in the 80’s BEFORE the MPB? (Evidently the Denver Water Board has seen my clearcuts don’t burn photos-LOL). Can you imagine proposing it even 10 years ago? What a difference a decade makes…and the MPB. Check out the “treatment map” on page 21 of the project EA. Pretty much sums up the “changing public values”…in a county that gave Obama 60% of the vote.

    This size timber sale is hardly unique to Colorado…and not a peep of litigation. I should add that in FY 2013, for the first time in History, the USFS in Colorado sold MORE timber than the USFS in Montana. Colorado sold 116 MMBF of timber, 75 MMBF of it sawtimber (>9” DBH) , while Montana sold 84 MMBF, only 34 MMBF of it sawtimber. Montana almost sold more personal use firewood than it did sawtimber. Oh…by the way…the Northern Region has come out on record saying that 230 MMBF is currently tied up in litigation. By the way…I was kinda bummed that the Montana harvest was only the “second” lowest amount sold since 1920. FY 2000 barely beat it out.

    Yes, it’s obvious to everyone who’s anyone that the USFS in Colorado is doing a much better job at “following the law” than the USFS in Montana…even though their EA’s are 1/4 the size.

    http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.com/11558/www/nepa/62842_FSPLT3_1464338.pdf

  5. I don’t have a subscription to Journal of Forestry – could someone please post the article cited in this article (previous study)? (I understand if it’s not OK)

    KEELE, D.M., R.W. MALMSHEIMER, D.W.FLOYD AND J.E. PEREZ. 2006. Forest Serviceland management litigation 1989 –2002 .J.For. 104(4):196 –202

  6. Thanks so much for providing the article! Living in Washington state, I have been interested in this subject – because it seems as if everything the USFS tries to do is thwarted by lawsuits, or threats of a lawsuits – and that some environmentalists and industry advocates are still reacting from the spotted owl controversy – it polarized both sides of the issue – but I wish to be objective and find all information I can find on the subject. I have read the 2002 publication, The Process Predicament, and I understand there has not been a follow up to that particular study, so these articles fill in for that void.

  7. Pingback: Environmental Litigation to Shut Down Forestry Projects | Not Without a Fight!

  8. The above “pingback” (Pingback: Environmental Litigation to Shut Down Forestry Projects | Not Without a Fight!) is a good example of the type of partisan politically-focused commentary that we supposedly try to avoid here.

    Perhaps the poster realized that the content of the piece was unlikely to pass muster here where a reasonable attempt at moderation occurs, and therefore resorted to an end-run around the rules. That’s unfortunate, as this type of thing is destructive to the core of this forum which is (at least ideally) rational and non-politically-partisan debate. Allowing “pingbacks” to whatever goofy websites someone seeks to promote will kill this place, in my opinion. -GK

  9. I guess I missed this thread when it was originally posted; however, I read the article shortly after it came out during the lit. review for my thesis. My question is: So what?
    Really, what does this study tell us? Nothing….it’s just stats devoid of context. To really engage the debate between preservation and management research needs to be addressing the “who, why, and how.” As Guy intimates with the ping back post above — all this type of study does is provide statistical fodder, devoid of content/context for interests who are committee to a certain outcome. Worthless…

    • I agree with Eric. The litigation study counts trees while losing sight of the forest.

      Three lawsuits have defined modern national forest management. Izaak Walton League v. Butz, California v. Block, and Seattle Audubon Society v. Evans. The first enforced a 19th-century law barring clear cutting, which led to the NFMA. The second stopped roadless area logging, led directly to the 1980s-era state-wide wilderness bills and, ultimately, the roadless rule. The third stopped old-growth logging on 17 national forests, cutting in half the nation’s logging level from Forest Service lands.

      All the other FS cases (wins and losses) are superfluous baggage that haven’t changed fundamentally the legal/policy stage set by the Big Three.

      Take a closer look at those three cases. Clearcutting. Wilderness. Old-Growth. Three iconic issues in which the timber-fixated Forest Service was so out-of-step with the American people that most cheered when the Forest Service lost.

      The troubles that continue to bedevil the Forest Service are rooted deeply in reflexive efforts to re-litigate these three losses.

      • In the Sierra Nevada, those issues were dealt with over 20 years ago. However, there still are people out there who want to reduce or eliminate timber sales, even when they don’t cut old growth or clearcut. There are also some who want to remove as much “discretion” as possible, from vegetation management activities. It’s too difficult to fix the problems in Region 5 so, they just keep doing “not enough”.

      • I disagree, Andy. It seems hard to me to get from clear cutting wilderness and old growth to roadside hazard trees..to me it’s more like a litigation industry developed and it seeks to continue with ever more innocuous projects..

        • Lots of sound and fury amounting to nothing. Sure, there are a few lawsuits in a few states that, occasionally, delay a few “roadside hazard” projects. These cases get an inordinate amount of attention, especially given that the plaintiffs rarely succeed. In the grand scheme of things, none of it makes any real difference. None of these cases changes forest policy or practice. But, the hand wringing on all sides of the aisle is truly impressive!

          • There really isn’t any good reason why the Forest Service can’t close that litigation loophole, at least in Region 5. The successful lawsuits against roadside hazard trees are usually associated with fire salvage projects. Here in the Sierra Nevada, the Ninth Circuit decided that only roads maintained for passenger vehicle use need to be made safe. It might take an Amendment to the SNF but, that would be easier and better than preserving roadside hazards forever…. or until the trees fall on their own. To me, it is unacceptable to allow litigation to stop roadside hazard trees. No one has offered a reason why such roads need to have unstable trees preserved. Within burned areas, I do think it would be good to exclude secondary road projects from regular fire salvage projects. That way, the safety work gets done without the delay of court battles. The courts also need to be taught about how culverts get plugged with debris on untreated roads, especially in burned areas.

            I worked on many Roadside Hazard tree projects in green forests, during the late 90’s. None of those seemed to get litigated, and it was easy to find defects, on large and old trees, that make them “hazardous”. I wonder how that would fly, today. Maybe that kind of road maintenance would be better as a part of a stewardship arrangement.

          • I think you are right about these lawsuits haven’t really changed anything. The FS and BLM are so scared to do anything they spend millions trying to figure out to sell some timber, usually more than the timber returns to them in stumpage. (But certainly worthwhile in the economy these sales create and projects that get done because of them.)
            But if you a small sawmill that depends on salvage logs this is very frustrating. I see enough timber wasted ever year on public forests to last our small sawmill hundreds of years.
            Why don’t the environmental radicals lay off the appealing of salvage sales? Their impact are always minimal, and the economy they create in the local communities can be great. What’s wrong cutting down a dead old growth tree when you have thousands of trees just like them further off the road.

            • Yes, I would really like to see a few specialty mills that make products out of a limited amount of old growth. Scattered small old growth mills could compete with each other for a sustainable amount of logs, producing extra money that is re-invested into the land, to do non-commercial work. Opponents want to paint that reinvestment as a greedy way to corral more funds, “to do the evil that they do”. No, it goes towards mastication, plantation thinning, “thinning from below”, etc.

              The eco’s desperately want the public to think salvage means clearcuts and maximum timber volume. They never want to talk about actual acres treated, within the footprint of the entire wildfire. The Rim Fire is a good example. Litigants want to exclude the burned acres in the National Park, basing their numbers on just the National Forest acres. A better analysis would show how much dead old growth will remain untouched, after salvage operations. The Biscuit only logged on 4% of the acres but, they still called it “the biggest ever”. Ditto for the Rim Fire. This desperation will weaken their arguments, as they get caught with their ever-increasing “embellishments”. Yes, losing the propaganda war will affect their credibility with the public. No, salvage sales will not be a “death sentence” for spotted owls, and hasn’t been in the last 50 years.

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