Appeals and Objections

Notes from the Battlefield: Is There a Better Way?

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This post is the beginning of a series on the possibility of turning our public land conflict “swords” into “plowshares.” Outside our natural resource and public lands world, this is generally considered to be a good thing to do. Even though we shed only dollars, piles of documents and snarky words, not blood; we must consider whether our conflict resolution methodologies are optimal- and whether the time and funding we spend fighting could be better spent on the pursuit of “good things” that we can all agree on.

So I would argue that at some spatial scale, we need to establish zones of agreement and a shared vision for our public lands. Right now it is a hodgepodge of seemingly random statutes, regulations and case law done over the past 50 years. It’s easy to blame the Forest Service for this jungle, but we simply make our living looking evading pits and predators and are not responsible for its creation. Getting together with a shared vision seems to happen at the local scale, but at larger scales, not so much. I would be interested in examples that you can share, particularly in larger scale examples.

On the other hand, many people think that appeals and litigation is not the best way of resolving disputes. I think we need to take a clear-eyed look at taking our disputes to court and consider the advantages and disadvantages, as well as creatively look at options for how both conflict resolution, and the use of courts, could be improved.

So let me start with some fundamentals with regard to my opinions on this subject.
First, I like many lawyers, including environmental lawyers, and even personally contribute regularly to an environmental law organization (CIEL). And I think some litigation is necessary, but it is not always the best, nor the most cost-effective, tool for a specific policy making, and/or conflict resolution task. In later posts, I will describe some real-world examples.

Second, nothing humans do is perfect, and Forest Service projects are no exception to that rule. The reasons for this are not always clear; some combination of line officer “discretion” and inertia seem to be factors. Far more common is the project that some like and some don’t like. And what can happen is that it isn’t judged on what it does, but on how it has been documented. Which can, if we are not careful, slowly move our mutual focus from project design to documentation.

Third, as Fred Norbury used to say “appeals and litigation are the Forest Service approach to quality control.” He didn’t mean that that was a desirable approach, just one that had developed and would be difficult to de-entrench. We have jointly built an interdependent, coevolved system with the litigation community (or “frequent filers”, as they are known colloquially). It would require internal as well as external change to reduce the joint burden and expense of this legal-industrial complex.

Fourth, I think that respectfully questioning others can contribute to both sides honing our ideas and thinking, and to being both clearer about, and better at, what we do. For example, although I sometimes disagree with Andy Stahl, I still listen to what he says because he brings a valuable perspective, in my opinion.

We face a great many challenges to public lands in the 21st century and in my opinion, if we improve the way people with different worldviews work together and resolve conflicts in facing those challenges, we will have resilient public lands and be a resilient community in jointly facing a variety of future environmental and economic challenges.

The Montana Conundrum II- Joint Fact Finding

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Matthew Koehler had a very thoughtful response to the original post here.

In continuing the dialogue, there are two main topics, what we might call developing an index of vegetation treatment intensity for each forest, and a discussion of why litigation rates are relatively high in Montana (or probably, more specifically Region 1 of the Forest Service). This first post is about developing the index.

How the need for an index originally came up was my question about why some might think we need more costly and time-consuming prospective environmental analysis, if we are simply doing less of what we used to do a lot of. In other words, we have plenty of timber sales and fuels treatment projects over the past years and should have some idea of the real environmental impacts (not projected, but observed). And conceivably, some impacts should be a function of the size of the acreage treated and proximity of those treatments.

The other opportunity that we might have from these data would be to compare forests with the same levels of activity and ask the question “do their levels of appeals and litigation differ, and if so, why?”

So I think it would be enlightening to do some joint fact- finding about what the actual treatment acres are relative to the total forested acres by forest across the country.. or at least for forests in the Rocky Mountain west.

If we could agree on some key data, I would be willing to try to extract it from the relevant databases. There seem to be three main questions:

What should we use as a baseline? It would have to be total forested acres because we are using these numbers in the context of understanding the environmental impacts. Take forest X with 1 million acres and 200 K acres of suitable timber, compared to forest y with the same total number of acres and 900 K suitable acres. If we are talking about the environmental impacts of cutting, say, 10K acres on a million acre forest, the impacts should be the same. Suitability is merely a human construct and does not tell us anything about impacts.

During the development of the 2005 Rule, Chris Iverson used to call this the Chugach/Tongass difference- you don’t need to analyze as much when you don’t do as much. The concept seems pretty straightforward. I was just trying to quantify “not doing as much” by looking at acres.

What counts as a vegetation treatment?
Here’s a possible list: prescribed burns, mastication, felling without removal (precommercial thinning might fall in here), felling with removal, felling with removal using temporary roads (commercial thinning would fall in here). As a person who has spent recent weeks reviewing a roadless EIS, I can tell you they all have different impacts. I would tend to stick to counting felling with removal and using temporary roads. Another topic is whether the treatment “counts” if the trees are dead. It seems like sedimentation effects of temporary roads would be more or less the same, but dead trees will fall anyway. Then, often, more trees die while people are planning projects. So to make counting easier, I would argue that a good estimate for our purposes (how much are our treatments impacting the land?) would be the acreage of all projects that have felling with removal, either live or dead trees.

What length of time should be analyzed? Probably the last 10 years would give us a good estimate of what we are currently doing, although some might argue for five. If we go too far back, we get to a time when the world was different. If we take too few years, we could allow unusual years to unduly influence the total.

Reflections on Dispute Resolution via the Courtroom: Field Trip to 10th Circuit Court of Appeals

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Yesterday morning we visited the 10th Circuit Court of Appeals to listen to the appeal of Judge Brimmer’s decision on the 2001 Rule.

There were three judges presiding,Anderson, Murphy and Holmes.  Since this is Women’s History Month, I have to point out that all the lead counsels, and all the judges were male.  The ratio of female to male judges in the Tenth Circuit is 3/20   or 15% based on their website, so the latter is not surprising.

Only some topics were relevant to our discussions of the planning rule.  One was the degree to which the concerns of the public during commenting need to be taken into account, and to what extent  decisions can be predetermined in advance.   I think it was Judge Anderson who said “Presidents are entitled to say let’s do this; that’s why they’re elected.” And there was also some discussion about inclinations, predispositions, predeterminations, and I think I also heard predestination (??).

One of the points made by the Wyoming attorney was that the analysis in the 2001 was  not site-specific enough to be meaningful .  I think it was something along the lines of “NEPA does not give you a pass because it’s hard to do the work”  quoting a 9th Circuit case on that.  Just another illustration of the problems of  programmatic  EIS s and the question of  “how specific does it need to be to allow site specific decisions without site specific analysis.”

I also heard echoes of our ongoing conversation on local places- how can you know about what is best for a creek and a landscape if you are dealing with millions of acres in a short period of time? But whether good land management decisions for specific units can be made nationally  is not fundamentally a legal question.

There are a couple of cultural differences worthy of note between the courtroom level and the kind of collaboration we work with day to day.  The first is that it is more adversarial. People win and they lose.  The judge doesn’t say “what can we walk out of here today and live with?”.  The second is that people care about trees and fire protection and wildlife, but the discourse is mostly about documents and analyses and relationship to statutes- not  what we can agree on to encourage productive and enjoyable harmony between man and his environment (NEPA section 101). When the judge and counsel talk about say, bark beetles, fuel treatments or coal mining,  they don’t seem to be clear on the facts (or counsel is intentionally unclear to slide by on their point), and certainly the structure of the process at this point does not allow for further fact-finding (15 minutes per side, in this case).

Third, is that compared to public comment and even discourse on this blog,  only some people are allowed to give their opinions.  So, for example, science is filtered through the legal profession, e.g.,  ” the 2001 rule was based on science.”

At the end of the day, I was feeling like perhaps this was not the best place for public land conflicts if it could be avoided.   The question is whether it could be. I remembered that some states,  for divorces, require mediation before they are allowed to go to court.

Here is the rationale for that in Utah (my translation is in italics):

Why is mediation required?

Mediation is appropriate in family (resource) related matters because it encourages collaborative problem solving by the parties. Mediation provides the greatest opportunity for direct communication and the sharing of information that can be critical to the successful resolution of disputes and when children (land decisions) are involved, the implementation of parenting agreements (and monitoring of those decisions). Mediation offers an environment well-suited to identifying and addressing the strong emotional issues associated with divorce and parenting conflicts (people’s livelihoods, and deeply held feelings and values for land and Nature). Mediation is structured to focus parties on a common interest: the resolution of the disputed issues and when children (the land) are involved, the future of their children (public lands). The informality and flexibility of the mediation process allows issues to be discussed that might otherwise be raised in a more adversarial or narrowly-focused process.

The benefits of mediation include:

  1. You directly participate in finding solutions to the issues in dispute;
  2. Mediation allows you to resolve your case more quickly;
  3. Mediation is less expensive;
  4. Mediation promotes relationships and you will end the process with a better relationship with your former spouse (other people and groups who are interested in public lands); and
  5. Mediation is less stressful than court.

I would add only that  you and the disputants know more about the details of the issues at hand and are likely to resolve the dispute in a more meaningful way to both of you and to the land.

We tried this, partially at least, as part of the objection process under the 2005 Rule but never worked out all the details before the Rule was enjoined (this happened twice, we were stopped during the objection process).

New GAO Report on Appeals and Litigation

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Here’s the link. Also check out Matt Koehler’s piece in New West and the comments.

If you look at the comments, it turns out that in Region 1, 36% of projects that can be appealed are appealed, and 87% of those that can be objected to are objected to.

I reviewed this GAO report’s predecessor prior to its publication (and they did not incorporate my comments in the final report). I was concerned at the time that the conclusions were a function of the scale. To me, to be fair reporting, if results vary by spatial scale you would carefully talk about that in the narrative.

To imply that nationally there is no problem, so complaining is unfounded, when one or more regions has a problem seems arbitrary. Based on that logic, if one of your family has serious health issues, but the rest don’t, you can’t shouldn’t be complaining about the health care system.. after all if you take the average for your family, it works. It’s  a framing or judgment call.. is it a problem if any of your children have a problem, or is it only a problem once you average them all out?

In Region 1 that older study showed that 48% were appealed and 90% of appealable decisions were appealed. If you had been there, your world would have been full of appeals.