Guy Knudsen

Industry lawsuit against 2012 Planning Rule

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I don’t know if this has been discussed, it was filed a year ago so maybe I’m just late to the party. It’s certainly an aggressive litigation effort that’s definitely not from one of the “usual suspects”. Here’s the link, the first place I saw it was on CBD’s website so here it is, I’m sure it’s available elsewhere too if you don’t want to patronize their site:

http://www.biologicaldiversity.org/programs/public_lands/forests/pdfs/industry_lawsuit_8-13-2012.pdf

A few enviro groups have joined in on the USFS side as defendant-intervenors (something about politics makes strange bedfellows…?)

I haven’t yet waded through all the relevant documents. But basically, the FFRC et al (a consortium of forest industry groups) is very unhappy with several provisions of the 2012 Planning Rule, as I read it they believe that:

1) They believe that the Planning Rule, 36 C.F.R. §219.8(a), creates an unprecedented new requirement that every forest plan “must provide for social, economic, and ecological sustainability.” (in other words, they don’t like that “sustainability” language)

2) They claim that the Rule violates MUSYA by unlawfully mandating extra-statutory “ecosystem services”, in  addition to the five statutorily-designated purposes of national forests. They say that providing “ecosystem services” is not a permitted purpose of national forest management under MUSYA.  As I understand it, they feel that these goods and services are traditionally viewed as free benefits to society, or “public goods” – wildlife habitat and diversity, watershed services, carbon storage, and scenic landscapes, for example.

3) A big one: They claim a violation of NFMA by unlawful mandate to maintain viable populations of plant and animal species of conservation concern before meeting multiple use objectives.

4) Another big one: they claim the Planning Rule unlawfully limits decision-making information by requiring decision-makers to “use the best available scientific information for every forest management decision.”   This one sounds kind of goofy at first glance, I think their (debatable) point is that scientific information shouldn’t be allowed to trump “commercial information” (I’m a little vague on what that is, exactly).

Anyway, thought I’d post this, it seems to fit into previous discussion on the “greatest good” in forest planning. The case is still going on (well, probably on hold right now for fed shutdown), they still hadn’t finalized the full briefing schedule as of a couple weeks ago.

One critique of Botkin’s book

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Probably posting this in the wrong place, but the only place where I could figure out how to post it.  I did buy Dan Botkin’s book (Moon in nautilus etc), got the kindle version which was cheapest, and am still deciding whether it was a good purchase or not. Anything that makes me think has some value, I guess. My three main problems with the book are 1) Very wordy, he goes on endlessly elaborating on isolated examples (wolves on the island as one instance), they are anecdotally interesting but his use of them to derive grander principles seems contrived. “Cherry-picking” is the term that comes to mind; 2) He repeatedly states the obvious and well-known (e.g., change rather than permanent steady-state is the ecological norm), sets up straw men to compare himself with (e.g., the idea that most ecology is based on, and ecologists believe, that nature is a steady state phenomenon, which is patently false, similarly his trivial and inaccurate exposition of the logistic equation in population biology, which he then proceeds to knock down), thereby proclaiming himself a “renegade naturalist”; 3) endless self-promotion (I guess that’s really just a variation on #2). When I read him, I’m reminded of Walter Mondale’s comment on Gary Hart’s self-proclaimed “big ideas”:  Where’s the beef?  One example that’s about as vegan as an idea can get, not in his book but on his website (modestly titled “Daniel B. Botkin: Solving Environmental Problems by Understanding How Nature Works”), where he provides “The Rules of Ecology” (so far there’s only one), which includes statement such as “The evolutionary goal is simply to stay around.” If you think just a little bit about that statement, you hopefully realize either that it’s flat-out wrong, or else he’s using the term “goal” metaphorically, much as Dawkins did when he talked about “genes maximizing their representation in the gene pool.” Again, this is metaphor, which is not explanation, and it would be helpful if Botkin would explain and acknowledge that, rather than throwing it out as part of “Botkin Rule of Ecology #1”.

Wondering if maybe I was alone in my discomfort with this book, I did locate one review (coincidentally in one of my favorite journals, Trends in Ecology and Evolution) which takes on Botkin’s book, both the good and bad aspects, much more eloquently than I could: http://sev.lternet.edu/~jnekola/nekola%20pdf/TREE-28-506-507.pdf

fossil

 

Note from Sharon: I left this here but also posted at the Book Club site. Here is the link to the post there. I turned off the comments here but you can post there.

Litigation and Policy, a tangled web

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If anyone’s interested, this post basically carries over a discussion from the “hazard tree lawsuit update” post (https://forestpolicypub.com/2013/09/25/hazard-tree-lawsuit-update-adopt-a-project/comment-page-1/#comment-19429), about the question of whether forest management policy is set by litigation, or not (i.e., Sharon’s phrase “If we currently manage forests by court case . . .”  There, I argued (along with others) that litigation doesn’t set policy, but I think maybe I understand where Sharon was coming from with her statement. Hence, here’s my short attempt to unravel the policy/litigation tangle. A standard definition of “policy” goes something like “A policy is a principle or protocol to guide decisions and achieve rational outcomes. A policy is a statement of intent, and is implemented as a procedure or protocol.” If that’s the case, a policy is a relatively formal instrument, not “what you happen to be doing” but rather “what you’re supposed to do and how you’re supposed to do it.”  The NFMA (or a particular Forest Plan derived from it) is as good an example of policy as any, since it lays out intent and the requirement for procedures that range from stringent (i.e., standards) to more precatory (sorry, lawyer term = wishful but not necessarily legally binding) such as guidelines. NEPA, ESA, or CWA are other good examples of federal policy that agencies are required to follow.  Litigation against the USFS generally takes the form of one or more plaintiffs claiming that the FS is not following the requirements laid out by policy. In that sense, litigation is a tool to enforce policy that’s in place, rather than to make new policy.

But, it’s also clear that litigation can be a motivating factor for subsequent policy changes. The classic example is the so-called “Monongahela Decision” (Izaak Walton League v. Butz, 522 F.2d 945, 950-52 (4th Cir. 1975)), where the Court said that the FS was violating policy (Organic Act) prohibiting clearcutting. That was a motivator for congress to implement new policy, in the form of the 1976 National Forest Management Act, 16 U.S.C.A. 1604, which in part had the effect of restoring clearcutting as a potential management tool.  So, while litigation did not itself make new policy, it did have the effect of encouraging policy-makers to come up with new policy.  While litigation and policy-making are not the same thing, there’s little doubt that they are intertwined. I found a 1975 quote from Hubert Humphrey with language very similar to Sharon’s, he said that NFMA would be a way to “get the practice of forestry out of the courts and back in the forests.”  Hubert Humphrey is long gone, of course, and won’t have a chance to read this post 🙁    And, confounding the issues even more, some plaintiffs might indeed have the long-term goal of prodding an agency or legislature to change a policy (although again, the court itself doesn’t make that change), or of having the court interpret the language of the policy in a way that’s favorable to them (e.g., the recent SCOTUS Decker logging road runoff decision).

One last thing I found online, is a theoretical so-called “policy cycle” that apparently gets a lot of attention from policy people, it has 5 stages:  1. Agenda setting (Problem identification); 2. Policy Formulation; 3. Adoption; 4. Implementation; and, 5. Evaluation.   Looking at a policy example such as the Nez Perce Forest Plan (1987), it’s easy to identify how stages 1 and 2 were done under guidance from NFMA, and presumably also with some opportunity for public/stakeholder input. Stage 3 is the formal signing of the Plan in 1987 (plus subsequent amendments). Stage 4 represents the duty of the FS to put the Plan into action, while focusing on guidelines and adhering to standards within it. Stage 5 is something I know less about, I assume that FS conducts some kind of ongoing formal/informal evaluation, especially since a re-write of the Plan needs to be done soon. But my point is that litigation falls outside of this policy cycle. It is aimed either at the early stages (to the extent that courts allow challenges to forest plans, but they don’t always, contending a plan isn’t “ripe” for litigation), but primarily at step 4 (Implementation): the lawsuit claims that the FS is not appropriately implementing the policy, and to the extent that policy components are legally binding, it’s breaking the law. Thanks for listening. Here’s a really good DOJ website about the origins of NFMA: http://www.justice.gov/enrd/3253.htm