More on Forest Service Accountability: Repost of 2022 Discussion and Does Anyone Have a Copy of the Mills Accountability Report?

This is a re-ask from 2022. Accountability has come up in our recent discussion, and we have new TSW readers. I’m still looking for the Tom Mills Accountability Task Force report. Rich J has a number of interesting links in the comments.

The Smokey Wire Information Request- FS Accountability Study and a new “What Year Was This?” Quiz

Outcome-Based Performance Measures Report 2020

A few weeks ago,  I heard Chief Moore say something like “the Forest Service is considering alternative measures for fuel reduction/wildfire resilience based on outcome not outputs.” This is somewhat related to our earlier discussion about timber targets.

I remembered that RVCC (Rural Voices for Conservation Coalition) had done some work on this, and the RVCC folks were kind enough to dig two reports up for me.  So it’s worth discussing and feel free to share any other reports or thoughts in the comments.   Discussions of performance measures do not normally get the blood flowing in many people I know.  Retirees may just roll their eyes and say “Thank Gaia I don’t have to think about this anymore or sit in meetings or read stuff about it…”  Nevertheless, here goes

It looks like there were two different thoughtful efforts.  One (2020) was called “Implementing Outcome-based Performance Measures Aligned with the  Forest Service’s Shared Stewardship Strategy.”

We’ll cover the other one (2022 with many of the same notable players) in the next post. This was a joint project of U of Oregon’s Ecosystem Workforce Program and RVCC with support from the Forest Service. The below is an excerpt of part of the paper.   The whole report is worth reading, and has many other points worthy of discussion.

5. Guiding principles and recommended next steps

In this section our goal is to provide guidance to the agency for moving forward with revising performance measurements in accordance with the Shared Stewardship Strategy. Our suggestions are derived from recommendations from the literature, stakeholder feedback, and our own experiences working with the agency

5.1 Internal agency considerations to prepare for performance measure redesign
The agency must define and communicate a clear purpose and audience for new performance measures prior to moving forward. We suggest that the agency consider the following questions and recommendations before requesting input from stakeholder partners.

It would be nice if all efforts required “communicating a clear purpose and audience prior to moving forward.”

Implementing Outcome-Based Performance Measures Aligned with the Forest Service’s Shared Stewardship Strategy 13
• What decisions and changes are new performance measures intended to inform? Whose behavior will change, and at what levels of the agency, as a result of the new performance measures? Be cautious of defining too many goals for performance measures. Composite priorities, such as those that are often referenced together in Shared Stewardship (e.g., cross-boundary, geographic prioritization, partnership), may require distinctly different performance measures.

• Will new performance measures replace or complement existing measures? New performance measures will not exist in a vacuum independent of existing measures, particularly timber volume and fuels reduction acre targets. As noted in the literature review, easily measured and defined goals and associated performance measures are likely to crowd out those with more complexity.  Furthermore, if new performance measures have no connection to budgets or staff performance reviews, they are unlikely to motivate or institutionalize new bureaucratic behavior. The distinction between performance measures should be clarified internally within the agency and externally for partners prior to moving forward.

Who are the intended audiences (e.g., WO,Congress, OMB, states, community partners) and what would be meaningful to them? A single performance measure is unlikely to meet
the needs of all possible audiences. Counts of partnership agreements, for instance, may help signal progress to Congressional audiences, but are unlikely to be particularly meaningful to local stakeholders or state implementation partners. We encourage dialogue with intended audience(s) to ensure performance measures are meaningful to those parties.

What investments will the agency be able to make in data collection and management? Utilizing existing data may be necessary and preferable in the short term; however, new performance measures will likely require some level of new data collection. We encourage the agency to recognize that updating existing databases and creating new fields, if not whole new data systems, is likely needed to meaningfully report on partnership outcomes.

At what scale does the agency want to implement new performance measures? The recommendations and considerations offered below apply broadly across most or all scales, but
performance measure design and implementation will look different at varying scales. For instance, the principle of inclusivity may look different if a performance measure is intended to evaluate a District or District Ranger compared to a Region or Regional Forester.

We also recommend that the agency make revised performance measures one part of a broader strategy to ensure that incentives and policies within the agency align with the intent of the Shared Stewardship Strategy. In particular, we suggest the agency convene a series of workshops for academic partners and practitioners who specialize in United States public lands forest governance and policy to consider options for broader reform efforts within the agency (e.g., reforming the National Forest Management Act, incentive structures within the agency, long-term visioning). We further recommend that the agency convene a structured meeting of national partners to further develop recommendations for implementing revised performance measures.

I’d only add that partnership-ish measures at the landscape scale should perhaps be coordinated in such a way that landscapes with intermix of BLM and FS should consider collecting the same kind of information and consider developing similar performance measures in those areas, if performance measures occur at the landscape scale. I think partners, neighbors and taxpayers would thank you.

 

Friday News Roundup I. Forest Service Funding and Belt-Tightening

Rumors of OIG Report on FS Spending on the Infrastructure Act

There are rumors of an OIG report that talks partially about the Keystone Agreements that the FS uses to help with BIL and IRA efforts.

I am finding out more about these agreements to report on here.

My current understanding is that large sums of money could go through these agreements, but actually don’t until a specific project is funded.  So the FS doesn’t have to “claw back” money because most was never sent out. Which goes to..

FS Funding Shortfall Possibilities and Plans

The Hotshot Wakeup has a story on the FS not having enough money, or tightening their belts due to lower appropriated funds in 2024, 5.2% cost of living adjustment and inflation.

Here’s the Chief’s letter.

I also heard that there are 33K permanents now, at least in part, due to fire positions going from temporary to permanent seasonals 13/13 or 18/8, which costs more due to benefits.  The idea, of course, is that life for these folks will be better under better employment conditions and more people will want to work, and fewer people leave.  My understanding is that that (33K) is more than the FS has had in previous years, but I can’t recall the exact figures by year.

I’m hoping commenters can add more context and background.

 

Friday the 9th on the Flathead

On June 9th, the 9th Circuit Court of Appeals dismissed an appeal in a lawsuit against its revised forest plan.  The appeal involved questions about ESA consultation on the plan’s effects on grizzly bears, and the proper environmental baseline for the amount of roads used in the consultation process.  After the district court opinion found flaws in the analysis conducted for consultation, the Forest reinitiated consultation with the Fish and Wildlife Service, which has now been completed.  The 9th Circuit held that the new biological opinion made that issue moot.  (A new lawsuit was filed against the new biological opinion, discussed here.)

However, Kurt Steele won’t be overseeing the Flathead Forest Management Plan. As of Friday, USFS Region 1 press officer Dan Hottle said Steele “was offered and accepted” a new post as deputy director at the regional office that involves “environmental planning,” according to the Flathead Beacon. It is unknown who will be Steele’s replacement.

This was also announced on June 9th, but I assume there is no connection between the Flathead Forest Plan and Steele’s move to the regional office forest planning staff (he wasn’t hired by the Flathead until after the plan was done).  However, there may be a connection to his work on Holland Lake (discussed most recently here), since it’s hard to imagine that a forest supervisor would consider a deputy position on a regional office planning staff to be a great career move.  That connection is denied by the Forest Service.

“There’s no correlation with this (personnel change) and Holland Lake,” Hottle said. However, he said he did not know whether Steele had initiated applying for the position or if the Forest Service offered it to him first. Hottle characterized the change in position as a “lateral move” with a salary that should stay the same.

This is interesting to me because the regional planning staff didn’t have a deputy director position when I left, and the current agency directory does not show that there is such a position to apply for.  It’s not unheard of for the agency to create a position to place someone where they will be out of the way, and I’ve observed that planning staffs tend to be seen as places to put people who need putting (and of course, anyone can be a planner).  Or maybe there is some kind of vindication going on because he will nominally be overseeing the revision of the Lolo National Forest Plan, and the Lolo is where a lot of the same people who oppose the Holland Lake development like to hang out.

 

 

 

 

 

The Meta-Smokey Dialogues: Wildfire’s Learning Culture and the Federal Landscape of Accountability

On one hand, it seems like the Boulder County folks, with help, did an excellent job investigating the Marshall Fire, and changing their practices based on that knowledge. Along with the concept of “lessons learned”. All that information is posted on their website. including an After Action Report and a Facilitated Learning Analysis.

On the other hand, we’ve had a global pandemic. Two federal agencies (DOE and FBI) think it might have been due to a lab leak. Other federal agencies were funding the research that might have led to the lab leak, and don’t think it was.. which seems like an obvious conflict of interest.. and they are continuing to fund similar work. You don’t need to have WHO numbers at hand to know that the Covid pandemic had substantially worse impacts than the Marshall Fire. Through the work of independent investigators, we have found many unsavory things about how gain of function research was managed, and how the discussion was handled in the press and on social media. Scientists are asking “is this research a good use of federal funds? Are the risks too great? Was gain of function research actually helpful in this pandemic, as promoted in the proposals? If it’s essential should it be done in more isolated places..say like Plum Island is for foreign animal diseases. Would it make more sense to have a commission of independent folks look at all this holistically -whether this research is needed and how it’s managed- rather than a variety of intelligence, law enforcement and other agencies coming to different conclusions on the more narrow question of a specific lab leak? Or should the usual “management of research” questions be considered (from London Times story):

It could have been the end of the Wuhan-North Carolina collaboration, but a loophole allowed gain-of-function work to proceed if deemed urgent and safe. Baric made the argument to the NIH, which gave approval.
……..
This triggered alarm bells for the US government because it would have involved the type of gain-of-function experiments that were still barred. According to documents obtained by freedom of information campaigners, Daszak argued the Mers experiment was not gain of function because it was unlikely to make the virus more pathogenic. A compromise was reached whereby the scientists would stop work and report to US officials if they created a new mutant virus that grew ten times faster than the natural virus it was created from.

…….

And the old and familiar, one agency found out something but it didn’t make an impression on another agency.
The US embassy found out about the experiments in Wuhan and sent diplomats with scientific expertise to inspect the institute in January 2018, according to diplomatic cables leaked to The Washington Post. They observed “a serious shortage of appropriately trained technicians and investigators needed to safely operate this high-containment laboratory”.

In the case of the New Mexico fires last year, the Forest Service had a 90 day stand-down, and involved the public in figuring out how to improve, and changed practices based on those findings. There’s a public report.

Then there’s the Durham Report. I recommend that if you’re interested, you read it yourself, not believe what others say about it. I think anyone working in a frequently FOIAed/litigated bureaucracy may enjoy it from a “glad that wasn’t me” perspective. There’s some humor in there as well. From page 258:

Within a day of receiving the Alfa Bank materials, Cyber Agent- I and Cyber Agent2 drafted a report of their analysis. he report’s summary stated that they had “assess[ ed) there is no CyD [Cyber Division] equity in this report and that the research conducted in the report reveals some questionable investigative steps taken and conclusions drawn.” The report acknowledged that there was no allegation of hacking and so there was no reason for the Cyber Division to investigate further. The report also said that

it appears abnormal that a presidential candidate, who wanted to conduct secret correspondence with the Russian government ( or a Russian bank), would (1) name his secret server ‘mail I.trump-email.com’, (2) use a domain (trump~ernail.com) registered to his own organization, and then (3) communicate directly to the Russian bank’s IP address (as opposed to using TOR or proxy servers).

Cyber Agent- I testified that both he and Cyber Agent-2 did not agree with the conclusion in the white paper and assessed that (i) the authors of the white paper ‘jumped to some conclusions that were not supported by the technical data,” (ii) the methodology was questionable, and (iii) the conclusions drawn did not “ring true at all.”

Now, I don’t expect the FBI to stand down for 90 days and look at how they went off the rails and how they might fix it. But why not have a report of what they found they had done wrong and how they plan to fix it in the future? After all, I’ve heard another election is coming up…

Here are my hypotheses:

-Fire culture has a history of lessons learned, others don’t.
-Important people don’t really want to know or improve; it’s OK for fire folks to undergo review, but not really important people.
– Partisans will try to get partisanship to creep in certain reviews and not others, and once partisan demons have entered the discussion, any review and improvement is DOA (dead on arrival). It has already reared its head with Covid in ways that I find, as a non-partisan, unfathomable. I understand how it happened with the Durham report, which was after all, about the FBI putting its thumb on the political scales before an election to the benefit of one party. Notice the Politico headline “Republicans dive into politically fraught push for Covid’s origin.”

But despite a growing chorus of bipartisan calls for such a probe, it’s unclear whether Democrats are actually willing to launch a wide-ranging review. The House’s select panel on Covid-19 has not committed to exploring how the deadly outbreak started, with its chair, Majority Whip Jim Clyburn (D-S.C.), recently suggesting he’d rather look forward than backward.

What is missing from this take on Clyburn’s take on (some) reviews is the idea that information helps agencies improve What if Chief Moore had said “I’d rather look forward than backward” after the New Mexico fires last year, or NASA had said that after the Challenger disaster?

Some (I would argue many or all) things are more important than partisan sparring. Like improving the way our agencies operate, especially those tasked with public health and law enforcement. Especially if you are in a party, I think, which holds the position that the government should be doing more things, an important piece of gaining trust would be being transparent about failures and fixing them… all across the interlocking mass of federal agencies. Among us the knowledge hasn’t been lost on how to do bipartisan commissions and reviews, all that’s lacking is political courage and a certain amount of bipartisan trust.

But even without the Congress setting up a bipartisan review, or the President setting one up.. perhaps they are all too embroiled in power-seeking to hear the call to good governance, there is nothing to keep NIH and CDC, and the FBI, from getting some fire folks in to help them develop the skills to have a more open, lessons-learned kind of culture. Who could be against better governance and developing trust?

The Smokey Wire Information Request- FS Accountability Study and a new “What Year Was This?” Quiz

We’ve been discussing Forest Service accountability. Yesterday’s post was about “when things go wrong with serious impacts.” But accountability can also have a more Government Performance and Results Act-ish tone. Like the FS tells Congress it can do things with the budget and doesn’t. I think both those definitions are important, but when we use the word we need to think about the scope and scale of what we mean. In case it’s not obvious, I think the historical perspective is important because we can see what has been tried and worked or not.  Which is what adaptive organizations do, as Chelsea pointed out.  I think it’s hard to be adaptive with seemingly random and shifting political and legal constraints, but perhaps other agencies have been more successful.

I’m looking for a copy of this taskforce report as discussed in this GAO study. I remember that Tom Mills may have been the lead.  Once again, I’ll offer an opportunity to author a post to the winner of the “what year was this GAO report” quiz.

Similarly, the Forest Service has not been successful in achieving the objectives in its forest plans or implementing planned projects. For example, in response to congressional concerns about the Forest Service not being able to deliver what is expected or promised, the Chief, in the fall of 1991, formed a task force of employees from throughout the agency to review the issue of accountability. The task force’s February 1994 report set forth a seven-step process to strengthen accountability. Steps in the process include (1) establishing work agreements that include measures and standards with customer involvement, (2) assessing performance, and (3) communicating results to customers. However, the task force’s recommendations were never implemented. Rather, they were identified as actions that the agency plans to implement over the next decade.

The task force’s recommendations, as well as those in other studies, are intended to address some of the long-standing deficiencies within the Forest Service’s decision-making process that have driven up costs and time and/or driven down the ability to achieve planned objectives. These deficiencies include (1) not adequately monitoring the effects of past management decisions, (2) not maintaining a centralized system of comparable environmental and socioeconomic data, and (3) not adequately involving the public throughout the decision-making process.

Cue this song. Other findings from the same GAO report:

First, the agency has not given adequate attention to improving its decision-making process, including improving its accountability for expenditures and performance. As a result, long-standing deficiencies within its decision-making process that have contributed to increased costs and time and/or the inability to achieve planned objectives have not been corrected.


Second, issues that transcend the agency’s administrative boundaries and jurisdiction have not been adequately addressed. In particular, the Forest Service and other federal agencies have had difficulty reconciling the administrative boundaries of national forests, parks, and other federal land management units with the boundaries of natural systems, such as watersheds and vegetative and animal communities, both in planning and in assessing the cumulative impact of federal and nonfederal activities on the environment.


Third, the requirements of numerous planning and environmental laws, enacted primarily during the 1960s and 1970s, have not been harmonized. As a result, differences among the requirements of different laws and their differing judicial interpretations require some issues to be analyzed or reanalyzed at different stages in the different decision-making processes of the Forest Service and other federal agencies without any clear sequence leading to their timely resolution. Additional differences among the statutory requirements for protecting resources—such as endangered and threatened species, water, air, diverse plant and animal communities, and wilderness—have also sometimes been difficult to reconcile.


However, on the basis of our work to date, we believe that statutory changes to improve the efficiency and effectiveness of the Forest Service’s decision-making process cannot be identified until agreement is first reached on which uses the agency is to emphasize under its broad multiple-use and sustained-yield mandate and how it is to resolve conflicts or make choices among competing uses on its lands. Disagreement over which uses should receive priority, both inside and outside the agency, has also inhibited the Forest Service in establishing the goals and performance measures needed to ensure its accountability.

Accountability, Reviews and So On: Where Does the Forest Service Fit With Other Federal Agencies

I’m getting a few posts together on a history of the Forest Service and various forms of “accountability”; also thoughts about “why the FS is not as adaptive as it could be” brought up by Chelsea.

In the meantime, I thought it would be thought-provoking to expand our view to “how other government agencies are held accountable”. Now there’s all kinds of accountability as we will see, but here I’m interested in accountability for “getting things wrong, with ultimately bad results for people in our country.”

When the Forest Service made a mistake, they did a stand-down on the practice for 90 days and involved a variety of inside and outside people in looking at what went wrong, and making recommendations for improvement. Which I think we will see in the next week or so.

OK, well maybe the CIA does this when their assessments turn out to be wrong, and we (obviously) wouldn’t know about it.  Let’s start with the Federal Reserve. According to its website,

The Federal Reserve, like many other central banks, is an independent government agency but also one that is ultimately accountable to the public and the Congress.

I ran across this podcast of journalist Bari Weiss with Larry Summers (who has had a very distinguished career doing many things, including being the President of Harvard and Treasury Secretary under President Clinton, but is an expert on economics). The question was “he was more concerned about inflation than others, why does he think he got it right and others got it wrong?” This is right at the beginning of the podcast.  One thing I like about economists is that they tend to be humble about what they know, as daily, annually, or whatever, there is empirical evidence that they are right or wrong.  They also appreciate uncertainties, and have developed ways to think about them.

Here is Summers says.. paraphrased by me.

It’s tempting to blame this (thinking that there won’t be inflation) on politics, but he doesn’t see political motivations among business forecasters. Emphasis on short memories; 40 years since we’d gone through this- many folks had no lived experience of inflation.  Bad statistical modelling.  Motivated belief, people wanted to avoid mistakes of the slow recovery, wanted to believe that they could engage in expansionary policies, the Fed knows best.. reluctant to challenge the views of the Fed. Tendency among pundits and economists to want to make new mistakes.  Everyone who did “widowmaker” trades worried about inflation in the past, didn’t want to make that mistake. All of those contributed to a communal belief system; Keynes said “When the facts change, I change my mind – what do you do, sir?”

Bari asked: why does the Admin ask you for advice, if you are critical of their policies?

Summers points out that except for the Trump Admin, he has advised both D and R Admins.  One reason he says is that he never questioned motives; never impugned integrity, focus on what the ideas are. Don’t feel we should take positions of moral superiority except in extreme circumstances.

It’s easier for people to hear you if you respect their sincerity.

Anyway, I’m not a big podcast person, but I think this might be interesting to TSW-ites, especially around the topics of expertise and accountability.

So, the Federal Reserve; perhaps CDC, what did they get wrong and right about Covid?  Should they have a 90 day review? I wouldn’t think they need to involve me (the public) but perhaps include experts who suggested different approaches than the ones they took?

What makes an agency get something wrong enough to generate a stand-down and a review?  How do we tell? Perhaps it should become more common.

Should citizens be able to nominate apparent mistakes for formal review? How can we do this without devolving into a Partisan Rock-Throwing and Defensive Drama where we can predict the dialogue in advance? Somehow the FS appears to have  managed to avoid this, so it can be done. What is their “secret sauce” (a Summers-ism)?

Blast from the Past: Hazardous Fuels Program Accountability

Thanks to Matthew for posting the NBC report.. I’ve posted some things here and here about this issue. The article states correctly that this push has been going on for some years.. I went back to some docs from the past and was surprised how much the discussion resembles that of the present day. Maybe there should have been some bucks for revising accountability measures in the IRA? I think using the scenario planning prioritization was an effort to address some of the concerns. Perhaps there are others? Budget structure? Of course the FS may be too busy responding to the many zillion other things it’s supposed to do, with employees retiring and difficulties hiring..

Guess which year this was written by whom? First correct answer gets.. to write a TSW post on their topic of choice.

Accountability Must Now Become A Priority

With the Congress and the administration now prepared to double or triple the Forest Service’s and Interior’s funding for reducing hazardous fuels and with up to five times the current fiscal year’s appropriation already available from within the Forest Service’s existing budget for these activities and related research, we believe that the Forest Service and Interior must act quickly to develop a framework to spend effectively and to account accurately for what they accomplish with the funds.
For example, according to the Forest Service, priority for treatments to reduce hazardous fuels should be given to areas where the risk of catastrophic wildfires is the greatest to communities, watersheds, ecosystems, or species. However, currently neither the Forest Service nor Interior knows how many communities, watersheds, ecosystems, and species are at high risk of catastrophic wildfire, where they are located, or what it will cost to lower this risk. Therefore, they cannot prioritize them for treatment or inform the Congress about how many will remain at high risk after the appropriated funds are expended. According to the report on managing the impact of wildfires released by the administration last Friday, regional and local interagency teams will be
assigned the responsibility for identifying communities that are most at risk.

Moreover, rather than allocating funds to the highest-risk areas, the Forest Service allocates funds for hazardous fuels reduction to its field offices on the basis of the number of acres treated. Thus, the agency’s field offices have an incentive to focus on the easiest and least costly areas, rather than on those that present the highest risks but are often costlier to treat, including especially the wildland-urban interfaces. Similarly, both the Forest Service and Interior use the number of acres treated to measure and report to the Congress their progress in reducing the threat of catastrophic wildfires. For instance, they report that they have increased the number of acres treated to reduce hazardous fuels from fewer than 500,000 acres in fiscal year xxx to more than 2.4 million acres in fiscal year xxxx. However, they cannot identify how many of these acres are within areas at high risk of long-term damage from wildfire.

The Forest Service and Interior note that reducing the threat to communities, watersheds, ecosystems, and species can often take years and that annual measures of progress must, therefore, focus on actions taken. We agree, but believe that they must be able to show the Congress and the American public that these actions, such as the number of acres treated, occur within the highest-priority areas. Furthermore, over time, they should be able to show reductions in areas at high risk of long-term damage from wildfire.

Finally, although we have not examined this issue as thoroughly at Interior, our work to date at the Forest Service has shown that, over time, the link between how the Congress appropriates funds and how the agency spends them has weakened as the Forest Service’s field offices have been required to address issues and problems—such as hazardous fuels reduction—that are not aligned with its budget and organizational structures. Forest Service field offices must now combine projects and activities from multiple programs and funding from multiple sources to accomplish goals and objectives related to reducing hazardous fuels. We have observed that the agency could better ensure that the up to $325 million a year that may already be available from within its existing budget to fund hazardous fuels reduction activities and research will be used for these purposes by replacing its organizational and budget structures with ones that are better linked to the way that work is routinely accomplished on the national forests. We have also observed that the Forest Service’s research division and state and private programs should be better linked to the national forests to more effectively address hazardous fuels reduction as well as other stewardship issues that do not recognize the forests’ administrative boundaries. However, according to the Forest Service, it has no plan to replace its program structure with one that is better linked to the way that work is routinely accomplished on the national forests.

FOIA in the Supreme Court

The U. S. Supreme Court has issued its decision in United States Fish and Wildlife Service. v. Sierra Club (March 4, 2021), the Freedom of Information Act case we have discussed previously.  The EPA changed its proposal for cooling water intake structures at power plants after receiving a draft biological opinion from the consulting agencies that found the proposal would jeopardize listed species.  In a 7-2 decision, the Court reversed the lower court decisions and held that a draft biological opinion on the effects of the original proposal, which was shared informally between the EPA and the consulting agencies, was exempt from disclosure under FOIA as a predecisional and deliberative document.  Specifically, “the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.”  This shows that the consulting agencies did not “treat them as final,” which is consistent with the context of the consultation regulations.

The ESA consultation process makes this case more confusing than it needs to be.  Normally, drafts circulated among members of a government team would qualify as deliberative, but here the team is comprised of multiple agencies following prescribed interagency consultation procedures.  A “draft” biological opinion is specifically identified by consultation regulations, and it must be provided by the consulting agencies if requested by the action agency.  In this case, the draft was provided by consulting agency staff without official signatures.  Without those signatures, it was not the final position of the consulting agencies, even though it had the effect of EPA changing its proposal.  With those signatures, apparently a draft biological opinion would have been “final” for the purpose of FOIA, and should have been disclosed.  (This may or may not have been the result of good lawyering, but it would be good lawyering to so advise in the future.)

The Court doesn’t dig into the other aspects of this FOIA exemption, one of which is that factual material is not deliberative and must be released, or therefore the question I raised about the need to disclose the science on which the deliberations were based. Apparently, that would happen here on a remand to determine what is “segregable” non-exempt material.  I wonder whether the scientific conclusions about the effects of the original EPA proposal are also considered deliberative because they were not yet “officially approved.”

A more typical case, which does address this question, is this new one from the D. C. District Court involving Florida Key deer and its Species Status Assessment (Sierra Club v. United States Fish and Wildlife Service, Feb. 26. 2021).

On its face, a factual scientific report, produced “independently from any” regulatory or policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative…  Nothing in this description indicates that the report contains “advisory opinions, recommendations[, or] deliberations” regarding the agency process at issue.

Yet, while the privilege does not generally extend to mere factual recitations, (citation omitted) “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.”  Such hesitation stems from the recognition that the drafter’s selection of facts can itself reveal the decisionmaking process.

This case also addresses the need for agencies to demonstrate harm to their deliberative process that would result from disclosing these records, which the Supreme Court does not address in the EPA case.  Public response to the case, including suggestions for congressional action, is discussed here.  (This article includes a picture of the the power plant at issue.)

BLM apparently leaderless

 

Speaking of “politicals” making decisions, here is the latest on one of them, following the announcement that BLM’s acting director would not be nominated for the position.

The Trump administration’s method of keeping the controversial acting head of the Bureau of Land Management (BLM) in power even after his nomination is withdrawn is likely not legal, according to experts who have reviewed the orders.

But Pendley is still running the agency because of succession orders dictating that the acting chief will lead the department if the director role remains unfilled.

Legal experts say the succession orders are dubious because the officials whose tenure has been questioned are the ones assigning themselves their new positions. The order was written and signed by Pendley, essentially giving himself the authority to act as director.

That runs afoul of the Federal Vacancies Reform Act and allegedly the Appointments Clause of the Constitution.  This law limits temporary appointments to 210 days.  Not mentioned in this article is the consequence of such an illegal appointment, which is  – (Congressional Research Report, citing 5 U.S.C. § 3348(d)):

Unless an acting officer is serving in compliance with the Vacancies Act, any attempt to perform the functions and duties of that office will have no force or effect.

The most direct means to enforce the Vacancies Act is through private suits in which courts may nullify noncompliant agency actions…  The Vacancies Act renders noncompliant actions “void ab initio,” meaning that they were “null from the beginning,” by providing that such actions have “no force or effect.”

Do you suppose anyone might sue to void any of Pendley’s illegal political decisions?