Forest Service Litigation-Behind the Scenes III: Bringing Knitting to a Knife Fight?

Long time readers are familiar with this post from 2011 which links to an interview with Kieran Suckling of the Center for Biological Diversity. I have appreciated his directness and honesty about what the Center’s lawsuits are really about. The interview was by Ray Ring of the High Country News, and Gina is a friend of his who is a marriage counselor.

“(Lawsuits) are one tool in a larger campaign, but we use lawsuits to help shift the balance of power from industry and government agencies, toward protecting endangered species,” Suckling told HCN in 2009. “By obtaining an injunction to shut down logging or prevent the filling of a dam … we are in the position of being able to powerfully negotiate the terms. …”
Suckling’s group often wins in court. But instead of helping various parties come to an agreement, as Gina does, Suckling wants to steamroll opponents: “New species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners … feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules. … Psychological warfare is a very underappreciated aspect of environmental campaigning.”

Of course, “psychological warfare” is too strong a term, but Mr. Suckling’s natural public language seems to be Hyperbolic. In my language, it would be.. “unnecessarily unpleasant experiences” and perhaps sometimes a “hostile work environment.” But let’s check in with the BBER study..

Other ripple effects mentioned by the FS and FWS personnel involved with the SBR case included reduced morale and feelings of frustration among personnel involved from repeatedly having the quality, completeness, and/or validity of their work called into question by litigants, by the press when these cases make it into the news, and by their professional peers and community neighbors.”

What I remember being frustrating about this was the feeling of bringing knitting to a knife fight. We were carefully trained to be collaborative and respectful of other opinions, and yet working in an area in which other people were disrespectful and snarky. One of my employees quit because a certain group she was dealing with were so nasty to her. For me, it wasn’t so much the part between us and the appellants/plaintiffs (although that does wear on you, others can be snarky and inaccurate but we have to be respectful and accurate), but the part about what gets to the neighbors and in the press. Note that in this case, it’s not just the FS but the FWS folks involved. It can feel like being beaten over and over again, but being unable to fight back. It’s not a good feeling.

The reasons I’ve heard to not reply to inaccurate statements included: 1. if we tell our story/ attempt to correct what is stated, it will sound defensive. 2. It’s in litigation, we can’t tell our story, the cone of silence has descended. I’d be interested in other reasons that folks have heard. The feeling I got is something along the lines of “it’s a contentious world but we can’t get involved, it will only make it worse.” Solution-wise, we could imagine an “Adopt-a-Project” Program in which we get folks (perhaps retirees?), train them to “fight back” and give them the appropriate tools. This could be scary for the Agency, because of losing control, but it seems to me that you need to balance someone “assuming the best” with folks who are “assuming and promulgating” the worst if the public is to get an accurate view of what is happening on their National Forests. Other ideas to help those on the front lines?

28 Comments

  1. Love it. Please keep trotting out the same couple of words that someone used almost 10 years ago. I mean, since the U.S. Forest Service is under the control of President Trump right now should we pull out Trump’s tweets? Or talk about Trump’s bragging about sexual assault and grabbing women by a certain body part?

    Besides, what’s a “Knife Fight” have to do with public lands and environmental groups anyway? Anyone concerned about the very much real guns and ammo that the Bundy folks have brought to public lands?

    P.S. Last I checked the U.S. Government and DOJ had far, far, far more resources that CDB.

    • No Matthew, I used those words because the situation seems identical to almost 10 years ago. Suckling is a member of an organization and continues to do the same kind of work.
      CBD is part of a lawsuit “alleging that the U.S. Forest Service and U.S. Bureau of Land Management failed to comply with the National Environmental Policy Act (NEPA) when they authorized oil and gas leasing in the Wayne National Forest. The plaintiffs contended that the agencies relied on outdated analyses that did not take into account significant new information about climate change and other issues. ”

      Suckling continues to be part of this discussion and directly involved which Trump is not.

      We don’t know how many resources DOJ is using since they won’t tell us. Their public affairs office didn’t reply to my request for information on “why they won’t tell us.”

    • I would think so too, except (1) court decisions are not necessarily related to the quality of the project. I would say that there is a positive relationship but maybe about .6, certainly not .9
      (2) it takes so long that when people say something bad about what you are doing and you are vindicated three or four years later the information may not get processed by those friends or others that those things weren’t true, and (3) in some areas, depending on the newspapers, they will write stories that are basically press releases for the litigants ” 500 acre thinning will lead to extinction of species!” but when the court decision is final it may have a paragraph somewhere, or not mention the project name, or even not be covered at all.

      • I’ve been the Forest Service lead for several lawsuit, and I can confirm that Sharon’s comments here are right on the bulls-eye. I spent 4-5 years on one particular lawsuit that I think illustrates some of these issues. The NEPA was done before I was an employee of the Forest and it was the first lawsuit where I lead the entire process for the FS, so it was a unique experience for me. Some things that really surprised me included:
        – Relentless FOIAs – we were FOIAd regularly and it took up an enormous amount of time. While we provided every bit of documentation we possibly could, the documentation got stuck at the RO and often didn’t go out for months… which bled into court discussions about discovery. It was frustrating to spend hours and hours collecting and transmitting documentation only for the perception by those outside the agency to be that we were dragging our feet or being reluctant on releasing this information. It was the agency being its own worst enemy.
        – Dodging a shotgun blast – The lawsuit included about 15 or so different complaints. So, just responding to each of these was extremely time consuming and exhausting. Over time the number of complaints narrowed, but it was a bit demoralizing that even patently false complaints had to be painstakingly responded to and backed up with documentation when it was clear they were pretty weak sauce.
        – Fake news? – Several of the complaints were about the Biological Opinion written by FWS. When we (FS) prevailed on all of the NEPA and APA complaints, the FWS did not on their ESA complaints. Since it was a FS decision, the local papers kept on saying the FS lost on the ESA complaints. This did not exactly help our standing in the local community. Of course, regional and/or national papers used the same information as the local papers, and again, it was frustrating and demoralizing to keep reading that you and your coworkers lost on a court decision when that decision actually upheld your work.
        – Interagency disparities – For whatever reason (resources, type of project, etc.), the FWS had a hard time meeting deadlines and responding to DOJ requests for responses, Statement of Facts, etc. The work they did do was pretty bare minimum, and often missed important information to defend against the complaints. Because the decision was dependent on the defensibility of the biological opinion, it resulted in major consequences for the lawsuit as a whole.
        – Ground truth – One of the key points of the lawsuit was whether or not the decision would adversely affect a Threatened and Endangered Species and its habitat. Since the court was hearing arguments 2-3 years after the decision was made, there was on-the-ground evidence about how the decision was affecting the species at issue. Of course, we weren’t allowed to enter this information as evidence to the court, because the administrative record only allowed us to include information up to the date the decision was made. So, even though the population of this species increased over 1000% between the decision and the court hearings, we weren’t able to bring that information to the court room.
        – Uneven playing field – The plaintiff regularly brought out-of-context and “new” information into their arguments. Once during a hearing they brought several posters of the project area that they claimed were from that very week. Our DOJ attorney declined to object to this because he thought it would look bad, as if we were hiding something, if we objected to this information.

        These are just a few of my personal experiences on a particular lawsuit I worked on. It is extremely time consuming and resource intensive to defend against a double-barreled lawsuit and can often be very demoralizing. I no doubt learned a lot. And I don’t necessarily believe the way the courts work needs to change. However, I do believe that it has a very outsized impact on the agency’s ability to plan and implement a land management framework… even when a project is successfully defended in court.

        • Thanks, Mike! I think it’s important to talk about it openly because the more we talk about it the more ideas we can have and elevate .. and make life easier for people on front lines without necessarily changing the system.

          I hear at least a couple here. 1) Somehow streamlining the FOIA process..they were working on this when I retired five years ago.
          2) Better exerting pressure on Interior to do its part (would have to happen at higher levels.. how high? I don’t know.)
          3) Local Forest Friends For Fairness (an organization not yet developed) could help with making sure that local newspapers are accurate.. and collaborating National Forest Friends for Fairness to correct inaccurate stories at higher levels. I have done this for some time, both in letters to the editor and the online comment sections. I’m not sure it “works” – who reads letters to the editor? Still it gets the word out and helps the public understand the broader perspective.
          4) Ground truth.. this could also be a separate story developed by FFF on what has been learned since the administrative record was submitted.
          5) Uneven playing field.. I have my own stories about DOJ tactical decisions. What it is hard to convey to people who don’t work with this is the sometimes “arbitrary and capricious” nature of what goes on in the courtroom. It’s like the rats who push the lever and sometimes get food pellets and sometimes get shocks. And we know what happens to them :). As our OGC folks used to say sometimes we win ones we should have lost, and lose ones we should have won.

        • Some of this reminds me of a workshop speaker at a “human dimensions of ecosystem management” workshop that I helped organize. (you can tell from the terminology how long ago that was!). I believe the speaker was Orville Daniels, a former Forest Supervisor from Idaho. He talked about the need to “listen to the whispers” – not just the yelling. And he talked about how it was important to learn where the whisperers hang out in your community – one former ranger mentioned that in her case, it was the local dump. In one community that I lived in, it was a small coffee shop near City Hall. In another place that I lived recently, the Mining Association hung out at one café; most of the ranchers at another, etc. In small towns, most folks know who works for the FS. I became a regular at several of these places and was viewed as a reliable person to get the “real” information from on just about anything that related to the Forest Service. To me, getting the information out this way is very important because you are dealing with the quiet majority instead of the more vocal minority.

          • One major question is how to motivate the quiet majority?
            The vocal minority usually have several motivators – financial, ego = power, and a belief in what they are doing – to varying degrees. What is more puzzling is the outside money – i have begun to suspect that it may be a form of guilt- a modern form of the medieval indulgence that clever money raisers have caught on to.

          • Thanks for this- this is very important and perhaps most important in the case of most projects.s. It’s a great thing to be able to achieve that trust and those relationships, within a community.

            In my work, I mostly dealt with projects that had “escaped containment” for various reasons, so were covered in the regional and national press. They escaped containment mostly due to the nature of the project, IMHO and not the capability of the folks on the forest. Or due to random factors, like a law school picking a timber sale for a student project.

            It doesn’t matter how well you work with local folks if XX environmental group doesn’t like coal projects and you have one.

        • I’m really interested in which species had a 1000% increase in population. What kind of activity did the project in question involve? Is the litigation all wrapped up so more information can be provided publicly? Was this a case brought by CBD?

  2. To me the most disturbing part of the entire situation, and it’s not only the CBD and Suckling but all his fellow travelers, is that while they supposedly speak for endangered species, the FS, FWS, and other government agencies are the only orgs that represent the interests of all the citizens of America. We don’t elect FS employees, but we do elect our representatives and Presidents who oversee the agencies, appoint their leaders, and via congressional committees, direct the direction the agencies take.

    My government agencies settle, rather than litigating, it costs less, they just want to get on with the job, and then parasites like the CBD make ever more money to bring ever more lawsuits. It’s long past time to change some laws. It’s time for the various enviro groups to find a new job other than litigating.

    • Conservation groups (are they all parasites in your view? or just ones “like the CBD”?) certainly represent the interests of their members, which usually means advocating for the protection of species and habitat, clean water, and clean air. But agencies have not always represented the interests of all the citizens of America. There have been examples of “agency capture” by industry, acknowledged by some who spent their careers in those agencies. There have been instances of political appointees “meddling” with decisions that were meant to be based on science. And there are countless other even more well-funded interest groups (industry associations, think tanks, PACs) out there, wielding power through lobbying and campaign donations (and also sometimes litigation). If the litigation tool ends up being taken away from concerned citizens/watchdogs, what signal does that send to members of the public about transparency, basing agency decisions on sound reasoning, and our ability to be involved in government decision-making?

      • When a PhD eco-leader says things like ‘Thinning projects are worse for our forests than wildfires’ (talking about the Sierra Nevada National Forests), what does that say about scientific reasoning? Do our forests REALLY need “larger and more intense wildfires”? There are many myths often repeated by the uninformed, on these issues. The public needs more education about forests and fires.

        • I know you meant “uninformed,” but I admit the “uniformed” typo had me chuckling.

          I know Chad Hanson and Kieran Suckling are recurring themes/targets on this blog, at least the comments section. I’m less interested in hearing arguments against their perspectives than I am in your thoughts on educating the public.

          Should peer-reviewed science and/or other evidence should constitute the content of that public education? How do we synthesize and reconcile the incremental nature by which forest/wildfire science develops into some sort of educational package? (Reminds me of how challenging it is to explain to the general public the cumulative science underpinning most researchers’ agreement that humans’ carbon emissions are the primary driver of climate change.) Who do we trust to deliver that education?

          How should that education take place, through existing mechanisms like print/digital media or some other, novel approach?

      • John, in my memory there is only one law used in public land management that says decisions should only be “based on science” without concern for other factors. That being ESA. I’ve directly witnessed political appointees on both sides “meddling” but I thought it was not “meddling” because that’s what it means to be in the Executive Branch.
        But of course, the “science” brought to bear on a decision is almost always contested (if there is sufficient money to fund a goodly amount). How do people’s underlying values affect their choice of topics and how they pursue them? How can “activist scientists” claim objectivity.. or is that necessary?
        Anyway, no one is (or I’m not) talking about “taking the litigation tool away” but we are acknowledging that there are downsides to settling land management disputes that way. One that I’ve seen is that local people without representation, or who can’t afford it, and impacted directly, have no voice in the settlement.

        • Yes, I had the ESA in mind with regards to decisions meant to be “based on science.” I referred to “meddling” in the sense of political appointees taking action contrary to the intent of Congress beyond Executive Branch policy-making discretion, i.e., Julie MacDonald. Did you witness other such egregious examples?

          I don’t know if there is such a thing as an objective human being. We all have biases. We all have values. I’d like to think more of our collective values overlap than might first appear. Most scientists likely stand by the integrity of their research and also accept that future studies may produce different outcomes or lead to refinements of previous conclusions. What do you propose be done to limit or control for a scientist’s purported lack of objectivity?

          I may have missed other posts or not followed the comment threads closely enough, but there is definitely talk by some in Congress and elsewhere of removing citizens’ right to judicial review under various environmental laws, i.e. the Resilient Federal Forests Act’s arbitration requirement.

          Who and what defines local? Is there a distance-from-boundary determination? Type-of-use determination? But don’t we all share public lands? Do you suggest NFMA and FLPMA be re-written to give different levels of deference to comments/appeals/etc. from citizens based on location or user type? More often than not, if a conservation group files suit over a public lands decision, there are members that live in the general vicinity. Do the agencies’ and (likely) intervenors’ positions not overlap with the locals you have in mind? Is your position that intervenors should be able to more directly shape settlement outcomes? And also locals that do not have legal representation?

          There are a number of non-profit entities that represent those that oppose federal environmental law enforcement, species and habitat protection, and land use regulations. I can think of a few off the top of my head. And there are private attorneys like our potential BLM director that have long histories representing such positions. Conservation groups’ exercise of organizing and fund-raising around shared concerns is often scorned, but those with opposing viewpoints could also organize and fund-raise around their perspectives (and some do), such as your suggestion of Forest Friends for “Fairness.” Quotes used because who defines what is “fair” in any given situation?

          • Thanks for your thoughtful comments, John, and participating on this blog.
            Thank you for your excellent questions. You have given me a lot of food for thought and an opportunity to dig deeper and be clearer.

            Each one of them deserves careful consideration, and I hope to address them in depth in future posts.

  3. Comment above about CBD (aka Center for Biological Litigation) – you might want to look up Chilton Ranch lawsuit where CBD had a $600,000 judgement against them for false statements about the Chiltons. This included false use of photographs and other allegations during a grazing lease renewal dispute. CBD continued their campaign after the renewal was granted.
    Suckling has been quoted as saying they don’t recruit those with technical training but rather those with communication and other skills useful in litigation. I believe that they are the largest receiver of Equal Access to Justice funds, which likely shows that this strategy pays off. Hopefully HR. 2936 and HR. 469 will turn this around.

    • Trenor Scott: “You might want to look up Chilton Ranch lawsuit where CBD had a $600,000 judgement against them for false statements about the Chiltons. This included false use of photographs and other allegations during a grazing lease renewal dispute. CBD continued their campaign after the renewal was granted.”
      =============
      I remember that lawsuit, in fact it’s even laid out on Jim Chilton’s own website:
      http://www.chiltonranch.com/chilton_ranch_lawsuit.html

      It amazes me how many of these organizations have such a religious zealotry believing the have the moral high ground and will even consider out right lying as a necessary evil for their version of the greater good. I remember some years back starting to read some outrageous articles at Huffington Post with Suckling as author and it had zero to do with anything about nature or the environment. It was all political garbage against a people and ideology he hates. Many of these people are not so much obsessed with saving Nature as they are about shoving and forcing their worldview down others throats. Nature is nothing more than a crutch to lean on.

      Arizona Rancher, Bill McDonald, of the Malpai Borderlands Group described Kieran Suckling this way: “Kieran Suckling wants to change society, and he believes the environment is way to do that. When you talk to him about species his eyes glaze over. When you talk to him about changing society, he gets excited.”

      How disgusting and pathetic. They rarely utter a word towards really helping people to truly appreciate and develop a love for the natural world. It’s all about the militant social reform movement.

    • I don’t believe that EAJA changes will make much difference. Folks who have a lot of money will always support those organizations that they think are doing a good thing. That’s I guess why I get envelopes in the mail from “Robert Redford” (NRDC).

      And I believe that (most) organizations that litigate for policy changes (OLPC)s do it out of a sense that they are doing the right thing and certainly not for the money.

      I go back to the Martin Luther King, Jr. quote “The means we use must be as pure as the ends we seek.” But politics and advocacy never signed up with Dr. King on that. I hope only that on this blog we can find things that that groups say that are not true and correct them publicly.

    • Hi Trenor Scott.

      You may, in fact, believe that the “Center for Biological Diversity is the largest receiver of Equal Access to Justice funds….”

      But you know what? I bet you $100 that you are totally wrong. So please provide evidence to prove your allegation that CBD gets more EAJA than any other entity in America. Thanks.

        • Hi Trenor. You previously wrote and describe yourself like this: “I grew up in a publishers family so words and their meanings are very important to me.”

          Yes, you are entitled to your own opinion, but not your own facts. If you make statements on this blog that are blatantly false, I will ask for documentation and verification. If you refuse to do that, as one of the moderators of this blog, I may make the decision to put an asterisk next to any false statement. Other moderators on this blog may feel differently, but how they choose to deal with false statements and allegations is there business.

          For the record, my candidate for “largest receiver of Equal Access to Justice funds” would be an entity that works in the area of Social Security and Veterans Affairs.

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