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

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).

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

  1. Sharon notes,

    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.”

    A very long line of court decision affirm CEQs idea of tiering from programmatic to site specific decisions. The problem has always been with the USFS, trying to end-run the law by trying to pack too much into the programmatic levels of decision-making.

    Sharon also notes,

    At the end of the day, I was feeling like perhaps [the courtroom is] 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.

    Remember that NEPA, RPA/NFMA, etc. were written to encourage collaboration, and even alternative dispute resolution in advance of “the courtroom.” Again, it has always been the USFS’s insistence on rapid decision-making that has led it into the courtroom too soon.

    It is ironic that the FS spends so much time on over-complicating its procedural guidance, then complains that it can’t comply with “the law.” Maybe it is time to visit other agencies and see if they too over-complicate everything. The attorneys I know — even the ones who represent the USFS — all inform me that the Forest Service itself that is the biggest impediment to legal compliance. This is true, arguably, both in the FS’s extensions of the law (rules, manuals, handbooks (when they contain materials that tie the agency)) and in the agency culture that is so steeped in “professionalism” that administrators and staffers get mad whenever confronted, whether in collaborative forums, in appeals, or in litigation.

  2. Dave- I am not sure that “collaboration” was even a concept when NEPA and RPA/NFMA were written. My experience is that most of the litigation that comes to mind on a daily basis resulted from what I would call painfully slow decision-making efforts with strong and philosphically different worldviews on each side, rather than rushing (my shorthand for one of our old cases was “reasonable access for unreasonable people”).

    Also, I think CEQ would say that most agencies (including the FS) don’t use programmatics enough, rather than us using them but trying to pack too much into them.

    An example of overcomplication leading to non-compliance would help my understanding of your point of view.

    • From 1982 NFMA Reg, 219.6 Public Participation: “the public is encouraged to participate throughout the planning process” More, follow this link:

      Even as far back as Pinchot’s “Use Book”, the FS has a long history of letting the public know all about the forests and forest management. Pinchot went as far as to say that the forests were not for managers to try out their pet schemes, but rather to manage for public use. Pinchot’s words:

      National Forests are made for and owned by the people. They should also be managed by the people. The are made, not to give the officers in charge of them a chance to work out theories, but to give the people who use them, and those affected by their use, a chance to work out their own best profit.

      The term collaboration came in later, and can never be true “collaboration” since government decision-makers have to make decisions that constitute “major federal actions.”

      As per CEQ and tiering, the Forest Service is guilty on both ends of the programmatic to site specific continuum. As I’ve mentioned before, long ago USDA attorney Peter Hapke wrote a scathing rebuke of the FS for thinking that it could do a programmatic forest plan, then jump to projects with nothing in between. On the other hand there is ample evidence that the FS used to try to pack it ALL into the forest plan in order not to have to deal with the middle ground, neither the projects which would be “categorically excluded.”

      An example of over-complication: try the FS Manual and Handbook system that I have argued for 25 years ought to be thrown in the Potomac. Here’s what I wrote on the subject in 2005:

      Breaking News: Forest Service cited for illegal dumping
      4/1/2005, Washington D.C.

      After a brief investigation, the US Forest Service was cited today for illegal dumping of paper into the Potomac River. Residents along the Potomac noticed debris floating in various parts of the river. Investigators soon identified the bulky rafts of debris as the Forest Service Manual and Handbook and traced the episode back to its source.

      It seems that the Agency finally took seriously the advice of iconoclast economist Dave Iverson, who had for years suggested that a cure for organizational paralysis would be to toss the Manual and Handbook.

      Agency spokesperson Betsy Bureaucrat said that agency apologizes for illegal dumping. The agency should have followed the advice of more prudent advisers and simply tossed the Manual and Handbook into the nearest recycling bin.

      Another example of over-complication would be each and every version of the NFMA rule that has been batted around and/or published.

  3. Yes, the 2001 Roadless Rule tried to “do it all.” What if it had been more like a planning rule? The Roadless Rule would have said something like, “we recognize roadless values and want to preserve them. Each region (set of forests in a state or whatever smaller regional unit) is directed to examine roadless areas and their issues in their region, with a predisposition toward protection but with site-specific analysis that can allow for a range of levels of protection or no protection at all.” Then, the agency would look at blocks of roadless area that are related and see what needed to be done, against a backdrop of protection unless required otherwise by site-specific facts or needs. Then, a series of rules like the Idaho Roadless Rule might have come out of that.

    That would have made litigation over the national rule difficult; it would have at least eliminated the current issues with it. Fighting over roadless areas would have had to devolve to individual areas or regional sets of areas.

    Kinda like planning. I agree with Dave, done right, tiering works. Every example anyone has ever shown me of the Forest Service system “not working” has been because the folks involved skipped or shortcut one of the tiers. With plans, having (1) a forest plan, (2) a set of programs (roads, restoration, oil and gas, etc. to flesh out the plan’s vision for that issue) and then (3) projects — has worked, the few times I have seen it done. And every time, collaboration was key to making that tiering work.

  4. And as for mediation, yes, I agree, it is usually much better. If anything, the RACNAC was a large mediation/mediator of roadless issues. And look what we came up with in Idaho! Much better than any litigation I ever handled myself.

  5. Not surprisingly, I don’t see these things quite the same way. In my world, litigation is about oil and gas development at both stages, access, recreation fees, coal mines, and grazing- which are all different in terms of tiering. Maybe it’s because these topics are not about restoration and designing vegetation management projects to be restorative, which perhaps more people can agree on. Maybe my world is seen less through the timber-vegetation filter.

    I think we can get carried away with layers of NEPA, not to disrespect the viewpoint of attorneys. In my view, we should do just enough analysis for collaborators to make good recommendations. We could do NEPA disclosure for the FS strategic plan, for each national program (fuels treatment, oil and gas leasing, recreation), for each forest plan, for each species protection strategy, for each program within a forest, and for each project. As the CEQ regulations state, Agencies are responsible for “Designating the major decision points for the agency’s principal programs likely to have a significant effect on the human environment and assuring that the NEPA process corresponds with them.” Reasonable people might disagree as to precisely what those decision points are.

    Dave, to me collaboration would be different from what is envisioned in NFMA because the agency official is not the center of the dialogue, people talk with each other and jointly recommend to the decisionmaker. To not be the center of the dialogue is a bit of power sharing. To go back to the RACNAC, by the Secretary (or Mark Rey) choosing to establish a FACA committee, he gave them some idea that they would be listened to… but in my view that is not the same as ceding the decision authority of the Secretary. Maybe I’m missing something in your argument.

    Ray- As you know, I am a big fan of the RACNAC and what happened in Idaho, as well as the Colorado Roadless Task Force and the RACNAC, and what is happening in Colorado. It’s the kind of discussion and mutual learning and mediation that took place with the Task Force and the RACNAC that is the “real deal” in making good public land management decisions, in my view.

  6. I don’t see collaboraton any different for forest plans than for any other decision. Here, abbreviated, is what I mentioned in comments on my Building Public Decisions post:

    Many years ago on the Boise NF we got a forest planning group of collaborators together for a one-time meeting to set a stage for followup meetings. The Boise NF sup told the various groups that if they (as an independent/interdependent group) called subsequent meetings, then the FS would most-likely attend. He also told them that if any consensus were to develop (across a very wide distribution of interest groups, state and local gov interests, etc.) that the FS would find it hard to do something other than try to follow the lead of the group. The Sup. also made the forest plan ID team available to the group.

    A bunch of meetings followed over several months between draft and final forest plan. And a few small agreements were hammered out that eventually went into the forest plan. All participants thought that the expericence was good, but that it was too costly in terms of time and money to be repeated on each national forest, on each BLM unit, etc.

  7. I think we should have an experiment with the mediation approach. Maybe a mediation body like the federal reserve board model…not political appointments, appointed for terms that overlap administrations. Charged less with abiding by the case law and more by the congressional laws…I know its easy to blame the Forest Service for everything, or the people who want no management, or the people who want to ride their ATVs or the people who want industrial forestry. But, if every one of those groups has the ability to gridlock the process, then we haven’t figured out the process very well. I think I’m ready for square one.

  8. I LOVE this dialog of enlightened and informed people speaking frankly without the government filter. It’s less about politics and more about getting needed beneficial work done instead of endless, profitable litigation from groups which have no desire for collaboration and consensus. I also have to question the experience and expertise of our Federal lawyers who refuse to become properly educated about forest projects. When we are losing public safety projects in court, like roadside hazard trees, we KNOW, without a doubt, that we are being played like a Stradivarius.


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