Forest Service Litigation-Behind the Scenes: I. Settlements, Policy and Public Comment

In this series of posts, I’m going to talk about what it was like for me to be a Forest Service employee involved in litigation, and how that experience leads me to this claim: that for many, if not most, projects and land management decisions, making decisions via the court system is suboptimal.

I’m not saying litigation of federal decisions is a bad thing. Separation of powers is something I think is a good idea. I don’t think people who do it to affect policies are bad people. People all have policy goals and use different tools to achieve them. If you’re a politician you use legislation, if a lawyer you use law, if a scientist you use science. I just don’t think the system works as well as it could for land management decisions.

A few weeks ago, I was in Montana giving a talk to a group of folks interested in collaborating with the Forest Service and veered onto the topic of “how FS litigation works.” Some were surprised and a bit horrified/depressed when I said “during settlement, often no one is in the room (or on the phone) who has read the public comment.” They didn’t realize that after the Forest Service goes through one or more public comment processes, using citizens’ time and money as well as taxpayers’, when the deal is being done, no one in the room or on the phone may have actually seen it. I think that this is important because I think that knowing what people think (even if they disagree, and of course they do) is key to making good federal decisions. At least in a “response to comments,” people get a chance to understand the agency’s rationale for not picking their approach. Not that “it wasn’t considered because no one making the decision was aware of it.”

Sometimes these settlements set precedents that are bad policy (in mine and others’ view). They settled the particular case, for example, but the next time a similar project came through, our attorneys said “you have to do this, or can’t do that, because the case law says so.” Not because a statute (voted on by elected representatives) or regulations (agreed to by the executive branch, selected by the voted for President, and including required public comment), said so. Of course, DOJ is also part of the executive branch, but their role in establishing policy, instead of the involved agencies, is contested.

But don’t believe me, I was just a humble Planning Director, with litigation being one of our staff’s multiple and variegated responsibilities. Here is what Chief Jack Ward Thomas had to say:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”

Again, I am not ascribing bad motives to anyone. The system is probably such that DOJ needs to close cases to meet their performance metrics. Whoever designed the performance elements didn’t make them apparently a joint maximization function among the affected agencies. Also, in my experience, settlements can develop a head of steam and it’s hard for someone to say “wait, let’s think about the potential impacts of this on (related projects)”.
Here’s a more gentle (I was still working then) post on the same subject from 2011.

9 Comments

  1. I disagree with two points. (I only remember being involved in one settlement discussion directly, but I was the litigation coordinator in R6 for a couple of years and case coordinator in R1 for some planning lawsuits).

    I agree that DOJ does not have the same perspective as the action agency and is focused primarily on resolving the case; however, a settlement is not a legal precedent (not “case law”) and does not set policy. There may be a political aspect to how DOJ manages cases, and within an administration they may take a consistent approach, but they are never bound to be consistent with prior settlements.

    The Forest Service participants are responsible for knowing what the public said and representing those views. If they don’t that is a personal/professional failure rather than a systemic failure. (There is no requirement to notify the public about how things went in settlement negotiations, but I don’t think there is usually a prohibition against it either.)

    I also hope you are going to explain what would be “optimal” decision-making.

    • Jon, I really appreciate your and Tony’s involvement in this discussion. Because we were in different Regions, at different times, I think there may have been cultural or OGC/FS relational differences, or differences due to the litigation topics (coal vs. timber vs. recreation).

      On the settlement calls I was on, the Forest Service public comment didn’t seem to have a place in the discussion- or even the FS reps didn’t have much of a place in the discussion.

      Yes, I agree settlements are not case law. But it’s always safer to do the analyses for the new project the Agency agreed to do last time (in a settlement). And the OGC part of the system is to give the Agency advice to be safe. And who goes against their own (highly knowledgeable and excellent) legal counsel? Hence there are many systemic factors to do more (litigation- proofing) and very few to do less.

      I don’t know what “optimal” decision-making would be, but I do like that in the response to comments Agencies have to explain why they didn’t do things people suggested. I think the people who could be impacted directly should have a stronger voice than those who are across the country and whose only knowledge of the issue is what they read on an interest group’s website.

  2. It is disappointing (depressing?) for the hard-working field personnel of the FS (who are trying to what they believe is the “right” thing) to realize that their on-the-ground efforts can be thwarted by a process that does not even acknowledge these efforts. This reminds something someone told me several years ago about managing land management conflicts: do not let issues get out of your backyard. Meaning, once an issue/conflict leaves your direct influence, who knows what the outcome will be?

    • Working much of my career in Timber Sale Administration, and particularly in salvage, it had its ups and downs. It has worsened in the last 20 years, and projects have been pared down and diced up. I’ve seen some litigation impacts of many sorts.

      There was even a time when, nationwide, the USFS couldn’t salvage a tree if it had just one green branch on it. The USFS had to come up with brand new salvage marking guidelines. Several of my salvage sales were the first court test of the new guidelines. They weren’t clearly written enough for everyone to understand.

      I worked on the Biscuit salvage and saw that they had pushed ahead and did roadside hazard projects quickly, without much challenge. There was so much botched in those helicopter and tractor salvage projects, though. Some of the units I marked snags in hadn’t even been visited before us. Some places were so steep, I doubt a helicopter could reach the logs without getting too close to the canyon walls. I’m talking like 80% slopes, with tall trees growing on them.

      On the Boise NF, there were some challenges to the Rabbit Creek Fire projects but, those hurdles were cleared and logging proceeded in June of the next year. 80,000 acres were left for snag habitat and were low in volume (of course!). Most of it was helicopter logging and it even included two Roadless Areas (1995). I was given a project which was mostly conventional ground-based logging, as I had the most Harvest Inspector experience. It turned out that the logger and I hit it off pretty good, and I got his best work. He had quite the collection of interesting logging equipment, including an impressive ‘jammer’ (tongs-pitching and log-handling excavator). He ended up buying a fancy Kamen logging helicopter, too, and I hear he went bankrupt trying to keep up with the payments.

      It sure seems like the Sierra Nevada National Forests aren’t getting a salvage plan together. At least, I haven’t heard about one. Maybe with that recent CASPO ‘update’ recently released, that might push the salvage plan out the door, soon. I expect a royal rumble when it is released, thanks to ‘the usual suspects’.

  3. Agreed. The point is, do your best to resolve issues/conflicts at the local level, in whatever manner practicable, to avoid handing off the decision to someone else who is not as invested in the outcome as the local participants are.

    I understand this brings into the conversation whether all the perspectives are represented at the local level. But, Sharon’s point is, that once a decision gets into litigation, it is possible (likely?) that “no one in the room or on the phone may have actually seen it.” And how does that represent the local perspectives in a particular conflict?

  4. Sharon said “making decisions via the court system is suboptimal.”
    In my experience, the court makes legal decisions, not land management decisions. Courts typically just “set aside” agency decisions that are arbitrary and capricious, abuse of discretion, not supported by the evidence in the record (even after giving the agency deference), or not in accordance with law. The decision is then remanded to the agency to make another decision, one that is legally supported.

    Also, an public land management agency that is not accountable to the public and the law is suboptimal.

  5. “who goes against their own (highly knowledgeable and excellent) legal counsel?” I’ve seen it done, and I don’t think it’s uncommon. When the FS loses a lawsuit, is it because the knowledgeable and excellent legal counsel got it wrong? Or were they ignored (or not asked because of fear of the answer)?

    “I think the people who could be impacted directly should have a stronger voice than those who are across the country and whose only knowledge of the issue is what they read on an interest group’s website.” That’s been a pretty fundamental point of disagreement for a long time. These are national forests and the laws governing them don’t say what you would like them to. In fact the national laws were written in part to counter “local capture” of federal agencies, to give the broader “ownership” a better opportunity to be engaged. Proximity and Congressional influence still give locals an advantage with the agency. Courts provide a more level playing field (but one that still favors the agencies).

    But in reality, most lawsuits don’t come from far away and uninformed plaintiffs.

    To address Tony’s point, “once a decision gets into litigation” judicial decisions are based on what’s in the administrative record. It should include everyone’s views and which ones were favored and why. Knowing these are the rules of the game, if the person who makes the decision doesn’t know and use what is in the record, shame on them. (It’s possible to ignore the record in settlements, but it should be a tool to help the agency.)

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