FS Wins on Little Slate Project

I couldn’t find a photo of the project.. so Nez Perce folks are encouraged to send one. Thanks!

For those of you who want to watch our government in action, I was sent this fascinating video of a court proceedings (Appeal?) on the Little Slate project. I couldn’t stomach much more than about 30 seconds (thank Gaia I am retired!) but I have been told by those who know that the whole thing is interesting, and that this blog’s own Guy Knudsen appears in the flesh at about 16:00.

According to one official:

The Court affirmed the district court in an unpublished memorandum decision (attached). The Court agreed with our positions that: the Forest Plan did not require MIS monitoring at the site-specific level, the EIS took a hard look at impacts on all species, and the BiOp was based on the best available data.

The FS received an NOI, won in District Court, were appealed and then they were denied a PI, then the 9th upheld the FS decision. Apparently it took a mere 2 1/2 years. Since we have people on both sides who contribute to this blog, we may be able to have an interesting discussion. I’d just like to know how much it cost the FS, OGC and DOj to win this case.. how much it cost the plaintiffs and where the money came from to litigate. I also wonder why this project was picked for attention, perhaps Guy can tell us what decision criteria were used.

Here are a few more documents of interest..2013_11_27_Decision_Order

20140725_Order_Deny_PI_during_Appeal_Dist

APPELLATE-#324388-v1-slate_-_Memorandum_opinion

Some info on the project: here’s the link.

Alternative B2 will: Conduct timber harvest and fuel reduction on 2,598 acres and construct 12 miles of temporary roads and decommission them after use. Decommission 49 miles, reconstruct 15 miles, and improve 63 miles of existing roads. Complete restoration of: soils (100-150 acres), riparian areas (0.75 miles), gullies (75 acres) and instream (13 sites). Treat 59 road and 73 trail stream crossings. Expand a rock quarry by 2 acres. Reduced yearlong motorized access on system roads & trails.

here is why folks opposed it.. they felt it would hurt lynx and bull trout. Note how the caption to the video says that “the logging would harm” not “FOC claims that logging would harm.”

16 Comments

  1. Unfortunately, First Amendment rights do not fully apply to attorneys with respect to cases they’re involved with, and I can’t comment on this specific case. I’ll note that you won’t hear much of plaintiffs/appellants’ case on the video that Sharon posted, for various reasons, but if anybody’s interested there’s a fairly concise summary here (it’s a public document):

    http://www.gknudsenlaw.com/wp-content/uploads/2015/01/Reply.pdf

    More generally, and not with reference to this specific case, the USFS has learned more and more to not even worry about faulty or nonexistent environmental analysis for projects, instead coming up with a general statement on the order of “Bambi and his friends will be ok, just trust us”, and then making on a claim for judicial deference to “agency expertise”.

    Federal courts rely heavily on precedent that agencies must be given “substantial deference” in their area of scientific “expertise”; e.g., in one especially inapt characterization, “on the frontiers of scientific knowledge.” Indus. Union Dep’t, AFL-CIO v. Hodgson, 499 F.2d 467, 474 (D.C. Cir. 1974). While there are indeed excellent scientists in the ranks of both USFS and FWS, those are not the people putting together project documentation, where the results are not dictated by scientists but rather by career administrators (a point which is generally lost on the judiciary).

    The phenomenon has been characterized by some observers as “super deference”, and the frequent abdication of oversight by the courts has had a pernicious effect on forest management and policy. Meazell put it well: “[A]dministrative agencies cannot make an exclusive claim on science because science plays a legitimizing role throughout government. Suppose an administrative agency were to make a fundamental scientific error that becomes the basis of a regulation. A judicial rule requiring extreme deference—even to blatant scientific errors—would magnify those errors and produce unfair results … If we want judicial review to enhance the legitimacy of agency action, we ought to think critically about whether super deference contributes to that end. If fairness and rationality are both furthered when agencies capture the best that science can offer, perhaps a more searching role for the courts—one that encourages agencies’ principled use of science—is called for..” Emily Meazell, Super deference, the science obsession, and judicial review as translation of agency science.” Mich. L. Rev. 109:733 (2011).

    Meazell’s perspective may seem obvious and common sense, especially in a society that ostensibly values general scientific literacy, but it’s a concept that has been losing ground in the courts.

    • We all knew that the closing of legal loopholes would be painful and awkward for all sides but … *smirk*

      Seriously, though, the “careers administrators” are not paid to be “scientists” (although they may qualify, with multiple degrees, in my eyes). Those decision-makers are advised by many actual respected “scientists” and peer-reviewed papers.

      Why is one side able to freely use loopholes, and the others side isn’t allowed? (Not saying that is happening, but… Let’s assume it is. )

      That being sarcastically-presented, I’ve never been a fan of “pendulum swing”. We need to continue to have open and transparent plans, which balance and mitigate many sometimes opposing issues. The Forest Service still needs to use high quality science that the courts can defer to. The economic parts don’t have that deference thing, and should be a separate issue.

    • Where, oh where, to begin? Or, perhaps the question should be how to begin? I guess I’ll start with more questions — is science ever truly right or wrong? Does it ever decide who wins and who loses? I ask these questions in an effort to juxtapose science and the common law adversarial approach to justice. Should we begin using juries and expert scientific witnesses to help decide these cases? The fact is Guy — as l know you are well aware but loath to reveal to the uninitiated — the devil is in the details. A lawyer can, through artful pleading, show that an agency has departed far enough from the accepted science that it becomes arbitrary and capricious. There are numerous examples. That some “super deference” conspiracy exists is sort of laughable. Do agency’s get it right most of the time, given the boundaries established by Congress? Yes. Is the court generally deferent to the agency’s scientific findings? Again, yes. Why? Because it is established judicial doctrine that our public servants are out there working on behalf of the public interest — not sneaking around trying to fudge science so that they can screw environmentalists over. Is the court the best means of determining, beyond doubt, whose scientific argument is superior? Absolutely, positively, 100% assuredly, no. So the next question is: Who is, if not the court? You? Me? The “experts”? The point is that the courts recognize that there is a whooooole lot of gray to interpret for an institution that is built to call things black or white. Unless, through artful pleading, the deference burden can be overcome, the court shouldn’t touch it. Fight the battle in Congress.

      • Eric, I may misunderstand some of your points, but I disagree with several as I understand them.

        “is science ever truly right or wrong?” The question is inapposite, since science is an intellectual/applied process and “right vs. wrong” is a non sequitur. But bad science often yields wrong answers (good science can too, but less often). And there is definitely an accepted distinction between good science and bad science. While some science may fall into a gray zone in the middle, there are also clear examples of what constitutes “bad science”, that most scientists will agree on. These would include ignoring data that doesn’t support one’s foregone conclusion, and disavowal of statistical analysis or other objective measures of validity (for that matter, having a foregone conclusion is also a symptom of bad science). There are others, but I picked these because they represent some of the issues that were raised in Little Slate (and were unambiguously in the administrative record).

        So-called “super deference” isn’t claimed to be a conspiracy (?? not by me anyway) but that doesn’t contravene its existence. There’s quite a lot of legal scholarship on that issue, well worth googling. One might hope that in a society that aspires to some universal level of scientific literacy, that some very fundamental understanding of scientific validity would be present in the judiciary (for example, one might say that the court should be willing to take judicial notice of the fact, so authoritatively attested that it cannot reasonably be doubted, that disavowing statistical analysis is bad science per se.

        Sadly, agencies do indeed “sneak around trying to fudge science” quite often, but you are right that judicial doctrine in this area of law says that we should “just trust them” anyway. Of course, one might note that the police are also public servants working on behalf of the public interest, but the notion that the courts should therefore automatically defer to them in all scientific and technical matters (i.e., evidence) is obviously not accepted.

        So, in criminal and most civil proceedings, we have a standard (Daubert) for admissibility of scientific evidence, which includes reliable application of principles and methods, etc., with the judge acting as gatekeeper. She isn’t expected to be a scientist, but is expected to understand and apply fundamental rules regarding scientific validity of evidence.

        Lots of literature on so-called “regulatory Daubert”, here are a few examples:
        http://www.jstor.org/stable/20059198?seq=1#page_scan_tab_contents
        http://www.mcgeorge.edu/Documents/Publications/_09_Holland_MasterMLR39.pdf
        http://www.thecre.com/pdf/20050505_jlp12ii_wagner.pdf

        Here’s one opposing the idea: http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1099&context=naalj
        This last author (Kelly) gets it all wrong, in my opinion: “There also seems to be little need for Daubert in the agency setting. Although no one would argue that agencies should use “junk science,” agencies already have the means and an obligation to avoid doing so.”

        Unfortunately, having the “means” and “obligation” to avoid junk science is not the same as actually doing it. Much as I have the means and obligation not to drive over the speed limit, I still am likely to find it convenient to do so, if nobody’s looking. And as long as the courts continue to buy into the agencies’ “just trust us” mantra, the FS could just as well put a Lysenko in charge of scientific studies and it wouldn’t even matter.

        • Guy said:
          “The question is inapposite, since science is an intellectual/applied process and “right vs. wrong” is a non sequitur.”

          Exactly my point. Courts decide right from wrong … sort out winners and losers. If an agency is using “bad science,” it is the lawyers job to plead the facts in a manner that is intelligible to the court. It doesn’t matter if the agency says “just trust us.” If the science is junk, and the lawyer can show the court that it is, no “super deference” doctrine on earth is going to keep the court from ruling that the agency acted in an arbitrary and capricious manner. Some courts are easier to convince than others. Thus, the “artful” pleadings. Malloy will make your argument for you if he feels that’s what justice requires. L. Winmill, not so much. I really don’t see why this is so complicated. To argue about the deference is to split hairs. In real life, as my dad used to say “you pays your money and you takes your chances.”

          • “I really don’t see why this is so complicated” Well, ok, not meaning to sound snarky but perhaps that’s because you’ve never actually done it. “Artful” pleadings sounds great in the classroom; let’s revisit once you’ve argued a few of these in court.

            • Well, should I be so lucky, I’ll be the guy penning the reply. Not the DOJ arguing.

              And I apologize Guy, I didn’t mean to be snarky myself. After interning with Chris and Alan at OGC summer before last I get how complex these cases are. I guess I’m just already a bit jaded. I hold out zero hope for the already overburdened federal courts to understand the science. On the other side, my wife is one of those USFS scientists – a siliviculturalist. One of my good friends is the USFS wildlife biologist who pretty much pioneered the proxy on proxy approach. I know how hard these guys work. I know they care about the ecologic health of their little chunk of the universe as much or more than any “environmentalist.” I also know that many of the “environmentalists” eschew sitting down at the table with these individuals in a collaborative setting where their differences could be worked out beforehand. Why? I suspect because once all the environmentalist’s platitudes have been aired and it’s time to get down to the nitty gritty science they find they are in over their head when the science doesn’t suit their particular ecologic religion. Thus, rather than collaborate, and talk about the real differences in the “science,” they would rather take it to the court where they “talk science;” but really, rely on the vagaries of a system that is forced to pick a winner and a loser. And as we previously discussed .. that ain’t science.

              • Yep, I agree there’s plenty of good folks in the FS ranks, definitely including the Nez Perce NF, some of whom post here occasionally but have to do so under a pen name. Though they’re often not the ones who get to sit down with “environmentalists”, instead its FS career administrators that do that job, and many of them have little/no scientific background (including for example those at the Regional Forester and USFS Chief level).

                Ecological and scientific knowledge varies greatly within the environmental community, as one might expect. Sometimes it’s surprisingly deep. With some folks, it’s because they’ve lived and breathed this stuff for many years (FOC comes to mind). Another I work with often is a PhD wildlife biologist with years of experience including with the USFS, I learn a lot from her (since my own PhD is in forest pathology, she brings me up to speed on wildlife issues). I actually don’t think we get in too far over our heads with the scientific nitty gritty.

                Unfortunately, substantive issues don’t generally resonate with the courts, for a number of reasons including scientific unsophistication, deference, judicial efficiency (e.g., no expert witnesses), and others. The Supreme Court stated that NEPA is entirely procedural and has no substantive requirements (I think they screwed that one up, here’s a good article that states this perspective more eloquently: http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1909&context=lawfaculty)
                The lower courts have been happy to parrot that “procedural not substantive” phrase, which greatly limits any possible role for science anyway. But yeah, a beer sometime sounds good 🙂

                • There are a substantial amount of “ologists” who care very little about politics and eco-rhetoric. They prefer to look at the data, and see that if money and jobs result from projects, then those are good “side effects”. They still “defend their turf” but, they use the site-specific data to guide their decisions (and opinions). Of course, there are those who will claim that “ologists” were “coerced” or threatened but, I have never seen that in my 25 year career. I’m quite sure it happened a lot, in the past…. the now-distant past.

            • And finally, I just wanted to say that I hate this stuff. I really do, Guy. Ultimately, we both want to see the right thing done by the environment. We want to preserve endangered species. We want to conserve public land. We want to preserve all that is good and beautiful for our progeny. I just feel like the system we have in place for dealing with the issues that arise when multiple stakeholders start squabbling over their piece of the pie is utterly inadequate. That’s why I pursued my M.S. in bioregional planning. We have to be able to come to common ground before the litigating starts. That’s my main point Guy. Deference or not, the court, the ADVERSARIAL SYSTEM is not he way to solve multiparty disputes. It must change and I’ll be dedicating myself to changing it in the coming years.

              Again, sorry if I came out with the hackles up. We still need to get together that for that beer sometime 🙂

              • Just wanted to say thanks to Eric and Guy. It was great reading the back and forth, like a couple heavy weights going 15 rounds! Good stuff and great for folks to hear these debates articulated so well! Thanks. You two really oughta to join forces and publish something that spells out the real difficulties in resolving these issues…

  2. The Forest Service still needs to use high quality science that the courts can defer to.

    That seems to me to be a pretty good bottom line. It would be a good starting point for a non-polarized national discussion on forest policy; not sure that’s gonna happen but one can always dream…

  3. Thanks for thoughtful comments on this post. I am wondering if anyone is aware of a more comprehensive, national assessment of the adequacy of FS science when this science is in question in litigation. Is there a trend that has been identified in recent years? In other words, is it that the method of data collection that are in dispute? The focus of the data collection? The site specificity of the data? Or the analysis of project impacts based upon data that was collected? What would it take to transform the FS into a cutting-edge science-based organization? Is it a financial question (i.e. more funding) only? Or is there a broader political question involved?

    Back in the day when I was more directly involved in the world of appeals and litigation, it seemed to me that the FS was severely underfunded in terms of it’s monitoring, and field based research and, as a result, they were often forced the rely upon modeling (which was usually inaccurate) or generalized statements that lacked site-specificity. The intentions of the those people putting together the analysis were good, but they were working in a politically driven system that didn’t value “science” as much as it valued outputs. Today, whenever the term “targets” is brought up, I often hear FS leaders saying that targets no longer drive the agency, but I wonder if the politically driven process by which the FS receives its funding has changed all that much…Thanks for letting me think out loud.

  4. While it would be interesting to get into the specifics of whether what the FS did was worthy of deference, I’d rather focus on one of the holdings: “nothing in the Plan requires USFS to conduct site-specific monitoring before implementing individual projects.” There is an opportunity for revised forest plans to correct this problem. And I think it is a problem for listed species and species of conservation concern where the science used to develop the forest plan is uncertain and future actions should be conditioned on monitoring results. Plans that aren’t written to provide for this kind of adaptive management may violate ESA or NFMA requirements for these species.

  5. As I read down through the 5 comments on this post (i.e. not mine since I was just asking questions), it occurred to me that these 5 comments pretty well encapsulate much of the debate over the role of the courts, science, and deference in National Forest management. Everyone’s thoughts and perspectives are “right”, but incomplete. I wonder if contributors to this blog have ever considered writing a book, with each opposing or at least differing perspective getting a chapter in which they would advocate for their perspective on how to resolve these issues once and for all. Maybe this has already been done? Again, I haven’t tracked this stuff closely for a while….

Leave a Reply

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