Light and Heat and BBER (II): What Do the Numbers Say?

Table 1: Number of Cases, Attorney and EAJA fees by NFS Region, 2003-2013

Claim 3. Not just BBER, but other studies have shown that R-1 has an unusually high level of litigation on vegetation management projects.

This seems to be due to the activities of a relatively small number of groups.

Of the 133 R1 cases in past 11 years, the majority (75) were by repeat litigants, with 30 cases filed by the Alliance for the Wild Rockies (AWR), 19 by the Native Ecosystems Council (NEC), 8 by the Lands Council, 5 each by the Ecology Center, Friends of the Wild Swan, and Swan View Coalition, and 3 by the Wild West Institute.

So here are some hypotheses:
(1) R-1 is home to a number of groups who have chosen litigation as a policy strategy.
(2) They are selling more timber than other Regions (this could be checked).
(3) They do a poorer job than other regions in being legally defensible (I doubt this based on the people I know who work there).
(4) They have more endangered species, which provide additional legal hooks.

Does anyone have additional hypotheses?

To examine these possibilities, it would be interesting to compare R-1 and its neighbor R-6, or even a couple of forests in northern Idaho and eastern Washington.

Claim 4. Litigation has a significant impact on the region’s a) timber program and b) ability to accomplish other vegetation management objectives (e.g., fuel treatments.)

Here’s what BBER says:

“Also, 54% of the timber sale volume (226.5 MMBF) and 64% of the acreage (35,485 cruised acres) was litigated, with over one-quarter of projects not under CE being litigated.” and “A regional timber program summary based on litigated volume in each R1 forest and program unit costs indicated that almost 54% (164 MMBF Scribner) of the Region’s FY 2013 timber program volume and 39% (114.6 MMBF Scribner) of the FY 2014 timber program volume were encumbered by litigation.”

Nevertheless, as Matthew has previously posted here, R-1 continues to meet its timber targets (although if we look at 2012 to 2016, we get 75% 64% 99% 101% 73%) . Someone else could say “out of the past five years, R-1 missed their target by 25% or more three out of the five years).

But let’s accept that R-1 is generally doing a great job of meeting timber targets and yet has lots of litigation that has an impact on their abilities to do this work as well as other work. How can both things be true?

It appears that R-1, in response to its situation of litigation, has evolved a strategy for meeting targets that puts more sales into the pipeline with the assumption that a bunch of them will be held up. This strategy is more successful in some years and not as much in others, as you would expect given the lurching progress of different litigation timelines. Neverhtess, it is a generally successful strategy.

Is it a problem or not?

Employees, retirees, elected officials, Montana citizens and citizens of the rest of the country can be of different minds about it whether there is a problem in R-1 (and elsewhere) and what to do about it. Personally, I wonder if FL groups should have that much power over what happens on public land, compared to other citizens and elected officials who are accountable to citizens. It seems like a good gig for them, but not so much for the rest of us.

15 Comments

  1. Does anyone have additional hypotheses?

    Well, why focus on Region 1, when it appears as if Region 5 and 6 are up there in terms of number of cases and actually exceed Region 1 when it comes to EAJA fees?

    But, it is true that Region 1 has a lot of endangered specie issues, including with wildlife like bull trout, Canada lynx and grizzly bears.

    Any everyone remembers that Julie MacDonald, the former Deputy Assistant Secretary of the Interior, who was forced to resign in disgrace because of her political (and anti-science) interference with critical habitat designation for lynx and bull trout?

    And then there was the nearly 15 year foot-dragging by the U.S. Forest Service on lynx habitat. Think any of those issues have had any impact at all on the number of lawsuits in Region 1?

    Finally, the BBER report claims 75 of the 133 lawsuits in Region 1 from 2003-2013 were by “repeat litigants.”

    OK, so that must mean that 58 lawsuits were filed in Region 1 by others. Sure would be interested to see that list of litigants and know how much in EAJA fees went to them.

    Finally, as the director of the WildWest Institute I have to say it’s sort of total non-sense and BS to be called a “repeat litigant” when we filed 3 total lawsuits in the U.S. Forest Service’s Region 1, which includes 12 National Forests and 25 million acres, during an 11 year period.

  2. Also, just going to point out that this BBER study was funded by the U.S. Forest Service.

    Certainly if a similar study was funded by, say, the Sierra Club, or Wilderness Society or (heavens forbid) the Alliance for the Wild Rockies that would be a point of discussion.

  3. From October 2014:

    Regional Forester Faye Krueger says Region One, which includes Montana, harvested about 280 million board feet of timber.

    Krueger says a major factor in the agency reaching its goal is that it’s overhauled its litigation strategy.

    “The main emphasis is on threatened and endangered species,” said Krueger. “That is always being challenged in the court and that’s usually what the courts send us back to do additional analysis on. We’ve worked on how do we handle each species for analysis.”

    Krueger says the agency is paying close attention to previous court rulings and working hard to develop projects that get it right the first time.

    The executive director of the Wild West Institute, a Missoula-based environmental organization sees it in a different light. Matthew Koehler also says this harvest total is in stark contrast to what politicians are saying to voters during this election year.

    “It would take 56,000 log trucks lined up for 480 miles to haul out that 280 million-board-feet of timber; and that’s just the amount of logging in one year off of these federal public lands. How the politicians can somehow equate almost 60,000 log trucks full of timber coming off our national forests as somehow being no logging and no management should be a real mystery to all of us who care [for] and cherish these public lands.” (SOURCE: http://mtpr.org/post/usfs-northern-region-reaches-timber-harvest-goal)

  4. One more thing…

    RE: “Nevertheless, as Matthew has previously posted here, R-1 continues to meet its timber targets (although if we look at 2012 to 2016, we get 75% 64% 99% 101% 73%) . Someone else could say “out of the past five years, R-1 missed their target by 25% or more three out of the five years).”

    FWIW: During the period 2012 to 2016 the U.S. Forest Service’s Northern Region met 82.4% of their timber volume target.

    http://forestpolicypub.com/2017/05/17/u-s-forest-services-northern-region-has-met-87-of-their-timber-sale-volume-target-over-the-past-15-years/

      • Howdy Smokey,

        We’ve been over this before, but I got the information directly from the U.S. Forest Service’s Periodic Timber Sale Accomplishment Report (PTSAR), which they say is “The regional summary displaying each National Forests current fiscal year timber sale program of volumes advertised, bid, and awarded” and also from the U.S. Forest Service’s Cut and Sold Reports, which they say is the “Summaries of total volumes and values for forest products sold and harvested from the Northern Region National Forests by Fiscal Year, Calendar Year, and Quarterly through the current Fiscal Year.”

        Anyone interested can look at the data here: https://www.fs.usda.gov/detailfull/r1/landmanagement/resourcemanagement/?cid=stelprdb5131032&width=full

      • I suggest Smokey examine the FS’s Cut-and-Sold report more closely. On page 1 is listed the total number of forest products sales made: 200,438 discrete sales of products. Note that 112,695 of those sales are for “non-convertible” products. Note also under Sold Volume, that there are ZERO board feet or cubic feet associated with these 112,695 non-convertible product sales.

        So what are non-convertible products? Fuelwood, mushrooms, decorative boughs, cull logs, Xmas trees. Sales of these items are itemized further down in the report. However, they are NOT included in the board foot totals because . . . ta da . . . they are “not convertible” to lumber.

        Bottom line: You’re wrong, Smokey. The Forest Service does not count firewood or Xmas trees in its “convertible” timber sale totals. The FS reports on the revenue earned from non-convertible forest products (a quarter million dollars in mushrooms!), but these products do not count toward “timber targets” or the ASQ or anything else associated with board feet.

        • Thanks for chiming in with some extra information Andy. I really hope that some people take the effort to look at information more closely before making accusations, or jumping to conclusions. This happens a lot on this blog and for whatever it’s worth, the problem seems to typically come from those folks on the “more logging” side of the equation, including folks who like to remain anonymous.

  5. The numbers say that R1, at 19%, is about average for percentage of cases that judges award fees – generally meaning that they lose (the biggest losers are R5, R10, R4 and R6), and R1 has the third cheapest lawyers it has to pay off per case (behind R3 and R4) (the average is $61k; R1 is $43k). So by any measure, it seems hard to pick on R1.

    I do want to pick on Sharon: “Personally, I wonder if FL groups should have that much power over what happens on public land, compared to other citizens and elected officials who are accountable to citizens.” All citizens have the same rights. Blaming those who choose to exercise them leads to efforts to limit judicial review of agency actions, and that promotes UNaccountable government.

    • No, sorry. I’m not “blaming” anyone.. I get it that determining the outcomes in a closed room is a good gig, especially if you believe you are right. Not all citizens have the same rights, as not all citizens have funds for access to legal representation. but I think your point is interesting… I was just saying that I disagree that it is the best way to approach these kinds of land management projects.

      There are lots of ways of ensuring accountability. One would be third party reviews of activities with an information loop into planning the next project. Maybe the third party would be a group composed of people of different interests and perspectives. If litigation is the only way agencies can be “held accountable” that is a pretty expensive and ultimately random way (do people with enough money to hire attorneys not like this project/rule whatever?)(what Circuit is it in?) (what judge did you get?) (how good are your attorneys?).

      My prospective change would be nothing that ultimately interfered with legal cases and accountability. I would start simply by requiring open transparent mediation before litigation, in which plaintiffs had to put their cards on the table for what they would settle for in an open and public way and people knowledgeable about the on-the-ground impacts of the settlement would get to weigh in, also people familiar with the public comments received.

  6. Hypothesis: Some regions have more and better watchdogs willing to hold govt officials accountable.

    These costs seem quite reasonable in the grand scheme. Compare to total budget of the FS over that time period.

    Litigation is just the last rung in the ladder of public involvement and participatory democracy.

    • Hmm. “More” and “better” than R-6 and R-5 groups? I don’t think that just counting, there would be more, so that leaves “better skilled.” How could we tell that from “works in a place with more legal hooks due to ESA”?
      I guess someone could look at cases in R-5 and R-6 and compare the complaints (NEPA, NFMA and ESA) and outcomes with R-1, you all being in the same Circuit. Any students or retirees out there who are interested?

  7. What an interesting array of “hypotheses”. Here’s my contribution. Being a numbers nerd, I took a grab sample (FY 2005 & 2010) of avg. number of sales >$10,000 and avg. CF volumes sold (all sale sizes) by Region and compared them with litigation frequency average. Nothing rigorous here — I was looking for ideas. Here are a few preliminary comments before sharing the results.

    Meeting the forest’s or region’s annual sale target is not a measure of how well the agency is managing the land. Targets are a function of how much money congress has appropriated that year (never anywhere close to what’s needed). They are useful public relations tools that make the agency look good and the employee’s feel like they’re doing a good job.
    .
    The number of log trucks and miles they would stretch from here to there under the current harvesting level has no relevance to management needs. The inconvenient facts are that the F.S. is cutting 8% of the current growth on national forest un-reserved timberlands while 68% of the growth dies.

    The mini-study revealed several interesting factoids.

    Regions 6 and 8 are nearly tied for top annual timber production.

    Western regions, sales over $10,000 in size: Average sale size 1.1 MMcf.
    Eastern regions (R8, R9) sales over $10,000: Avg. sale size .3 MMcf

    Western regions, sales over $10,000: Cases per 100 sales, 2.6 (R3 high =5.0, R6 low = 1.3)
    Eastern regions (R8. R9). sales over $10,000: Cases per 100 sales, 0.25 (R8= 0.3, R9 = 0.2

    The average sale size nearly doubled from 2005 to 2010

    Do larger sales invite a higher percentage of lawsuits (bigger stakes, more money)?
    Are westerners more litigious that easterners?

Leave a Reply

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