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:
- You directly participate in finding solutions to the issues in dispute;
- Mediation allows you to resolve your case more quickly;
- Mediation is less expensive;
- 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
- 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).