Participating, Objecting and Litigating: AWR and Some Montana Projects

east reservoirA reader sent me this series of questions about AWR’s objections to some Montana projects:

It would appear the Alliance for the Wild Rockies isn’t participating in the formal public comment piece of the proceedings. The attached are objection responses for the East Reservoir (Kootenai) and Trapper Creek (BDNF) projects in Montana. Dated 7/17/14 and 10/17/14.

The summary is the AWR isn’t submitting specific written comments as required by 36-CFR-218, resulting in the dismissal of their objections. It would appear there is a bit of cutting and pasting from previous appeals going on.

Does this flagrant disregard for 36-CFR-218 mean the AWR loses standing to sue?

Will the USFS test this in court?

Is it just another tactic by the AWR to test it in court…and tie the project, and future projects, up in the 9th circuit?

Why can the AWR get away with not following procedural review…but the USFS can’t?

Sharon’s thoughts: When I was working for the Forest Service in a different Region, different people working in appeals and different attorneys had different ideas about what to do when appellants “didn’t get the appeal in on time” and “submitted an appeal without changing the name from the last project (or only changing the title)”. One example I remember concerned meeting the deadline. The appeals coordinator felt that “rules are rules and we need to enforce them for everyone.” But some of the OGC attorneys felt “we ought to cut them some slack because they might get mad and sue us or otherwise cause trouble.” My personal opinion is that this did not become an issue with permittees or the ski industry or whatever.. they were expected to follow the rules. It’s kind of easy to feel sorry for a shoestring operation (some of the environmental groups who did this actually were shoestring operations, but others clearly were much better off, than say, some permitees), but, on the other hand, rules are rules.

So I don’t know how this will work on these Montana projects. I just know, in my experience, there were a lot of different points of view in what was the “right thing to do.”

For those who wonder how these different points of view get resolved, in our case, we would write a letter (say denying the appeal), and the attorneys would sit in on the meeting in which we would brief the Deputy Regional Forester and give their point of view. But if OGC was going to push on it with the DRF or RF, I think the attorneys would check around among themselves to see if they shared the opinion first before deciding to push. If the DRF (the boss of me and our shop) agreed with the attorneys we would go back and do what the DRF said.

Anyway, is there anyone out there who can answer the reader’s questions with more current and relevant experience?

For those who are interested and have not worked in this area, I recommend you take a look at the links below.

Here are the links to the Regional Forester’s letters re the objections on Trapper Creek:

and East Reservoir.

Here are the responses on the two projects:

trapper creek page 2

trapper creek page 3(1)

East Reservoir page 2

East Reservoir page 3

19 Comments

  1. In my experience as appeals/litigation coordinator in R6 (long ago before ‘global replace’ was discovered), and working with them and OGC in R1 fairly recently, the deadline was always regarded as absolute. On the adequacy of the appeal itself, the norm was to accept the appeal rather than create another issue for litigation.

    The purpose of administrative review is to give the agency a chance to resolve issues without going to court. If an appeal/objection doesn’t give them enough information to work with it is not accomplishing that goal, and should probably be dismissed. On the other hand, does it take any more effort to deny the appeal than dismiss it?

    It could be that the Forest Service nows sees an opportunity to use dismissals to allow it to defend subsequent litigation by claiming that plaintiffs did not properly exhaust their administrative remedies by properly raising an issue. Or maybe they just want more useful appeals/objections. Based on my time in R1, this looks like there has been a conscious policy change to take a more aggressive position against ‘boilerplate’ appeals and objections. If we see this in court, my impression is that courts have a pretty low bar for plaintiffs to meet for this kind of question.

  2. If it is one of the “serial litigators”, then I have no sympathy for their errors. If they are a small group, or individual, I would tend to let it slide by. I did see some form letters that had the wrong names filled in, back in the 90’s but, today’s eco-groups should be held to a higher level, and their errors should be a part of the courts’ records, for Judges to “use” as they see fit. That being said, I don’t think such things should be used as an “end run”, to get around the litigated issues. I’d like to see loopholes legally closed. Just my 2 cents worth.

  3. Ok, I’ll bite. I’m defending my thesis on Friday, titled “The National Forest Management Divide: Evidence From Administrative Comments on U.S. Forest Service Projects Indicating Why Environmental Interest Groups in the Northwestern U.S. Choose Whether or Not to Collaborate.” The research sought to test some of Caitlin Burke’s conclusions using 36-CFR-218 specific written comments, rather than the self report data used in that study because some of it’s conclusions just rang untrue to me. For example: non-collaborating environmental interest groups will only be interested in environmental values, whereas collaborating groups will be interested environmental, equitable, and economic values. But I digress …

    I FOIA’d comments on all CFLRP veg mgmt proposals for the four Northwestern CFLRP’s authorized in 2010: Southwest Crown, Clearwater, Deschutes, and Tapash. I then used a rudimentary deductive content analysis based on Burke’s earlier study to categorize the comments into three interest theory IVs (environmental, equitable, and economic values) and three political opportunity theory IVs (management context, stakeholder context, and collaborative context). In doing so, I rated well over 3000 “specific written comments.” Of those, AWR submitted by far the most. However, one AWR comment is not the same as another. THE DCFP comments were submitted by George Weurthner. SWCC comments were submitted mainly by Mike Garrity, but also some by Jeff Juel. And most of the CBC comments were proxied through Gary Macfarlane of FOC (might as well be AWR because Gary sits on the board of directors). Mr. Wuerthner and Macfarlanes comments were great. It would be a pleasure to read and respond to their input as a USFS employee. Mr. Garrity and Juel? Not so much. But there is a method to their madness. The comments do become more specific as a proposed project moves though the planning stage. At the scoping level there is a lot of cut and paste going on using the old “To comply with NEPA the DEIS (always a DEIS never an EA) must provide ABC – XXYYZZ.” This is usually supplemented with a raft of the latest literature. It’s a tough slog, and I assure you there is very little specific about these comments. Progressing to the draft stage, the comments from scoping usually get pasted again into the front end of the document, but the back end gets specific and draws from the generalized front end material to apply to specific instances on the ground. Only the SWCC went to a supplementary notice and comment stage. There, the comments got laser specific.
    Tactical? Sure. I see it as a form of “institutional protest” because like the litigation that often follows, it slows the agency down (at least for the uninitiated). It certainly slowed my content analysis down … which is essentially what the USFS planners are doing with the comments. But it’s also a pretty effective way to establish an administrative record in anticipation of litigation, unless, of course, the wrong project gets pasted into the document — which I did encounter on a couple of occasions.
    Could the agency make a legal argument to ignore the comments because they are outside the scope of the project if pasted wrong? Sure. But again, there is the question of whether it’s worth it. Most of the planners I’ve talked to are of the “initiated” variety and just ignore that which is not of substance. They’ve seen it all before. My personal feeling is that if it gets to court, don’t attack AWR. Go after the lawyer representing AWR. Counsel has an ethical responsibility and can be sanctioned for arguing frivolous evidence. That would give pause to any lawyer representing AWR, and likely put future pressure on AWR to curtail the practice.
    Hope that helps to answer some of the reader’s questions.

  4. Wow. Just read the Trapper Creek letter. It appears that Ms. Krueger has thrown down the gauntlet. I don’t disagree with her. As I said earlier in this thread, I think AWR is making a tactical decision to employ a form of “institutional protest” in crafting their comments in this manner. It doesn’t help the agency make better decisions. It mires the process. It will be interesting to see how this plays out.

  5. Not to get in the way of a good ole fashion witch hunt, but….

    FWIW: The following comment is from Mike Garrity of the Alliance for the Wild Rockies…..

    We submitted comments on East Reservoir and objected. The objection was accepted. So I don’t know what she is talking about here.

    On Trapper Creek, we submitted all the required comments and appealed. They accepted our appeal and then denied our appeal. We then filed a lawsuit and they pulled the decision. They then put out a new EA without notifying us that they put out a new EA. The Forest Service then signed a new decision. NEC and AWR both then filed objections and said they had to accept them because we were never notified that they wrote a new EA so we weren’t able to comment.

    NEC signed AWR onto their objection and AWR signed NEC onto our objection. The Forest Service accepted the NEC/ AWR objection but did not accept the objection AWR wrote for us and NEC saying I didn’t follow the correct format. Since they accepted NEC’s objection which AWR was signed onto and I didn’t raise any important issue that Sara didn’t raise. It was not a big deal.

    The objections regulations were confusing but I have now figured out the format the Forest Service likes and they are accepting all of MT objections now.

    We have not sued on either project yet though we are still considering it.

    • Mr. Koehler-
      We’re sorry to inform you that your comment is outside of the 36 CFR 218 scope of this thread and will not be considered.

      Just kidding … thought the thread could use a little levity 🙂

      It’s always good to hear both sides.

  6. Matthew- “Witch hunt”???? Really?

    I thought I was pretty clear that I was posting it for someone else. I think regular people who are paying taxes for the Forest Service and EAJA fees and all that.. deserve to know what’s going on in government and how it all works. Thank you for contacting Mr. Garrity and getting his side.

    I only wish we could have a public discussion between Mr. Garrity and the Forest Service and collaborators about what they all think. Viewing the arguments back and forth would be very illuminating IMHO.

    • Yep, really, Sharon. One cool thing about this blog is that it helps serve as an nice archive of such behavior. But back to specifics….

      BTW, Mike Garrity just also wrote me this, which seems to basically be confirmed throughout much of Eric Anderson’s comment based on his research:

      “I looked at the comments again and I see the usual complaints about AWR cutting and pasting. To have standing to sue on something you have to first raise the issue in your comments and then the objection. It is hard to know what the Forest Service might do wrong so you have to raise every possible issue you can think of. For example if they violate the National Historic Preservation Act and you didn’t say in your comments that they need to follow the National Historic Preservation Act, you won’t have standing to sue. The same goes for our objections, we have to raise every possible issue if a lawyer might want to on something. If the Forest Service doesn’t like it they can change their rules. I think it is so funny that the Forest Service writes the rules and then complains that we are following them to well because our objections are too long. The other thing is the Forest Service write cookie cutter EAs and EIS then they complain that we write cookie cutter objections.”

      Finally, regarding Eric’s comment: “Counsel has an ethical responsibility and can be sanctioned for arguing frivolous evidence.”

      Umm, does anyone have actual proof that any attorney representing an environmental group has actually been “sanctioned for arguing frivolous evidence?”

      Finally, Friends of the Clearwater was founded in 1987 and has nearly a 30 year track record of working to protect public lands and wildlife in north-central Idaho. OK, sure, a FOC employee (Macfarlane) sits on the board of AWR. That doesn’t mean FOC might as well be AWR (which seems to be what Eric Anderson has said) any more than it means Exxon-Mobil might as well be Stanford University because a Standford professor sits on Exxon-Mobil’s board.

      • Does there need to be proof that a lawyer has been sanctioned? I was simply suggesting that it could be done.

        Here’s a link to the ABA model rules: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_1_meritorious_claims_contentions.html

        The rule states:
        A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

        In addition, lets be real here. This isn’t Stanford. We are talking about an “Alliance” for the Wild Rockies.

        • Hi Eric, Yes, I’m familiar with the ABA rules and yes there does need to be proof if you are just going to allege something like this. That’s why I asked for you (or anyone) to provide proof of it happening in the past. I mean, you’d think it would be common given how some folks talk about all the supposed ‘frivolous’ lawsuits. If that’s the case, let’s see some evidence please.

          Also, you want to be real here, Eric? You ever try getting into Stanford Law? My brother is a lawyer, worked for one of the nation’s top law firms and is now a leading expert on the Foreign Corrupt Practices Act (http://www.fcpaprofessor.com). He could tell you lots of interesting stories about trying to get into various law schools as a student, or now trying to get employed as a law professor as an expert in his field. Bottom line: Not easy (especially if your dad, or grand-dad didn’t go to Standford Law or Harvard Law or Yale Law).

          Fact is, one of the main lawyers for AWR finished top of the class (literally #1) at the University of Montana Law School. Sorry if that’s not ‘good’ enough for some.

          • Hmmm, where to begin.
            You said “yes there does need to be proof if you are just going to allege something like this.” To which I agree. But that’s not what you initially stated. What you initially said, and to which I responded, was “does anyone have actual proof that any attorney representing an environmental group has actually been “sanctioned for arguing frivolous evidence?” This is stating that there needs to be precedent. There does not. Would it help? Sure. But original arguments are made in good faith all the time. Your second statement involves whether the lawyer arguing for sanctions has “proof” that opposing counsel is arguing frivolous evidence. One of the reason comments are made is to establish a record on which the court can rely. Were a lawyer to come across comments (evidence) that opposing counsel is relying on, that have been copied and pasted from a project that has nothing to do with the proceeding, a good faith argument be made that opposing counsel is arguing frivolous evidence and a motion for sanctions could be made before the court. Not only that, but it would appear to border on malpractice. Apples and oranges between your initial and secondary replies.

            Second, what in the world does my stating “In addition, lets be real here. This isn’t Stanford. We are talking about an “Alliance” for the Wild Rockies” have to do with your statement “You ever try getting into Standford Law?” Are you arguing that by extension that because your brother is lawyer you know what your talking about? And who said anything about the quality of AWRs lawyers?

            I guess I’m confused. Or maybe I hurt your feelings because your reply seems to imply on an ad hominem attack. If so, I apologize.

            Have a good day. I’m too busy to get bogged down in tit for tat.

            • Hi Eric Anderson, Yep, I have a full time job having nothing to do with forest policy, so count me in the ‘busy’ group too. You didn’t ‘hurt my feelings.’

              I guess I took your comment: “In addition, lets be real here. This isn’t Stanford. We are talking about an “Alliance” for the Wild Rockies”….as an insult directed towards a lawyer who represents AWR in lawsuit, thus my response. If I misunderstood what you meant, ok, sorry about that. And dang, I totally thought that because my brother is a law professor that fact means I too am a legal expert. Thanks for pointing that out.

              Also, I asked you (or anyone) for evidence/proof about all these supposed ‘frivolous’ public lands logging lawsuits, because I hear that term tossed out there pretty much anytime a lawsuit is filed. Ok, I get that perhaps there’s no evidence/proof because there’s been no precedent set. So…..

              Good luck in your ‘frivolous’ attempt to help establish frivolous malpractice precedent against a lawyer that represents a forest protection organization in a logging lawsuit.

            • Eric, I would agree with this point: “But it’s also a pretty effective way to establish an administrative record in anticipation of litigation”. Since these cases are argued only (for the most part) on the admin record, and since the agency pretty much controls the AR, it makes sense for potential plaintiffs to expand the AR prior to litigation, after which it would be too late.

              But I don’t think this approach will be especially promising: “My personal feeling is that if it gets to court, don’t attack AWR. Go after the lawyer representing AWR. Counsel has an ethical responsibility and can be sanctioned for arguing frivolous evidence. That would give pause to any lawyer representing AWR, and likely put future pressure on AWR to curtail the practice.”

              Rule 11 does allow sanctions for a frivolous case (rather than “frivolous evidence”), but if the issue is valid then the weight of supporting evidence is something to be argued, brick is not a wall etc. (obviously falsehoods are something else). If evidence is arguably relevant, it’s hardly sanctionable. Of course that’s one reason the courts put word or page limits on briefs, to try and reduce the amount of filler. Plus, the courts don’t expect attorneys to necessarily be subject matter experts or to have intimate personal knowledge of the facts, “Generally, an attorney may rely upon the reasonable representations of their client…” (Dubois v. U.S. Department of Agriculture, 270 F.3d 77, 82-83 (1st Cir. 2001)), and “absolute certainty of the facts following a reasonable investigation is not required” (CQ International Company, 659 F.3d at 63).

              Good luck and congratulations on your defense, is there going to be an announcement about when and where? I’d enjoy hearing it if I’m not teaching then…

              • Hello, Guy

                I agree with you. I was spitballing with that idea more than anything. Probably not the friendliest tactic a lawyer could choose from.

                My defense will start at 11:30 in room 108 at the law school this Friday. It’s more of a mini-defense, as I already went through round one, but was sent back to the drawing board on a couple of points. It will, however, be in depth enough to get the takeaway. They want me to crank through a 10-12 minute presentation, followed by Q&A.

                Thanks for the interest and I hope you can make it.

                • well, I suppose legal math set theory says that {workable tactics}>{friendly tactics} 🙂

                  Darn, that’s exactly the time my Microbial Ecology class starts, so will have to wish you luck and sure it’ll go well. Maybe you’ll be able to share the publication with us at some point, I’m guessing folks here would find it very interesting (I would anyway).

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