Stay Tuned: Conflict Resolution/Litigation Topic

Thank you to Martin, Ray, Matthew and Andy for your thoughtful posts on the use of litigation as a conflict resolution tool. What I would like to do next is to carefully read Martin’s essay, synthesize everyone’s points and reflect them back to you to make sure I understand them.

Unfortunately, this is the time of the year that my other volunteer activities reach a crescendo (so to speak) so it may be over the holiday break that this happens.

Nevertheless, I think this is a rich and robust topic for discussion. Our greatest number of hits for this blog occurs when we discuss this, so it seems like our readership feels the same way. I am looking forward to further engagement and enlightenment.

So stay tuned.

If anyone knows where I could get a searchable electronic version of Jack Ward Thomas’s “The Journals of a Forest Service Chief”, it would be helpful- he has some great quotes on this topic which I would prefer not to have to search for and type in manually.

12 thoughts on “Stay Tuned: Conflict Resolution/Litigation Topic”

  1. Thanks, Matt- that is a great discovery! Others: if you want to quote JWT from his book, just type in the topic and the search engine will show the page and what he said.

  2. Any discussion here where public lands fuels reduction efforts are looked at in terms of conflict resolution/litigation should include reference to the facts and stats contained in the General Accounting Office report “Information on Appeals, Objections, and Litigation Involving Fuel Reduction Activities, Fiscal Years 2006 through 2008.” It’s available here:

    When the GAO released the report, New Mexico Senator Jeff Bingaman, the Chairman of the Senate’s Energy and Natural Resources Committee, along with House Resources Committee Chairman Nick Rahall had this to say about the GAO’s findings:

    “Nationwide, 98 percent of Forest Service decisions approving hazardous fuels reduction projects – covering more than 10 million acres – were implemented without litigation. Just 2 percent – involving 124,000 acres – were taken to court. Administrative appeal rates dropped by 69 percent compared to 2002-2003.”

  3. Matthew- I’ll just repeat the point I made to the GAO when we commented on their earlier report. People don’t perceive a national average.. they perceive what is happening to them, where they live. If your community has no doctor, it doesn’t really help you when you’re sick, to know that on the average most US communities have 12 doctors per 1000 people (this number is just made up).

    2010 GAO Report (2006 to 2008) showed 21, 12 and 10 for Regions 1 5 and 9 respectively. Also, if they were only looking at fuels projects it was a relatively small part of (at least in some regions) the total litigation business.

    So here is GAO’s response to a comment similar to mine, above.

    “The Forest Service also commented that because appeal rates vary widely throughout the nation, we should add language in the narrative regarding local perceptions of appeal rates and how they can differ from the national data. The agency noted that when local groups or individuals state that many projects are held up by appeals, they are more likely referring to their experience at the local level. We believe the information needed to discern regional differences was already presented in the report; therefore, we did not make changes to the report.”

    GAO also chose to frame it from the national perspective as “not a problem” rather than “locally problematic”. That was a choice; not necessarily the only conclusion they might have drawn.

  4. Ok, Sharon, so if you want to largely discount the GOA report as being too broad, I guess that’s your right. However, taking your “no doctor” analogy at face value and applying it to this report is interesting.

    I mean, you live and focus your work mainly in the FS’s Rocky Mountain Region and Southwest Region, right? Well, according to the GOA report, the USFS’s Region 2 and 3 had zero…zip, nada, zilch…litigation of fuel reduction project during the period. So I guess this must mean that anyone living in the states encompassing the FS’s Rocky Mtn or Southwest Region has no right to complain that “Enviros are suing to stop nearly everything” right?

    Also, the following independent academic reports on USFS appeals and litigation (which Martin helped out with) might be of interest here.!.pdf
    This 2003 paper from Jacqueline Vaughn, a professor at Northern Arizona University, explains how members of Congress and the Bush Administration were successful in demonizing environmental groups through the use of rhetoric and the repetition of unconfirmed data to reduce their influence and credibility in the forest and fire policy debate.
    While the Bush Administration attempts to significantly limit the public’s right to participate in decisions affecting America’s public lands, a 2003 report from Northern Arizona University shows that appeals of Forest Service projects have actually dropped significantly since 1998. The researchers found that for such a politically contentious issue there has been no comprehensive and systematic analysis of the outcomes of the appeals process. In order to answer basic questions such as: How many appeals are processed by the Forest Service annually, who the appellants are and type of projects being appealed the researchers found it necessary to construct their own database of Forest Service appeals.

  5. Matthew.. you raise some interesting points. One thing we could do is round up what’s out there..

    First, when people like me (not a partisan kind of person, for sure, and I don’t demonize anyone) ask questions like “is litigation as a tool pursued too much, too little or just right?” (the Three Bears test) they are usually talking about the workload, not just fuels reduction projects, but the sum of all litigation. I actually worked here from 2006 to 2008 and know we were involved in litigation. The most memorable and timeconsuming projects, though, were not fuels reduction.

    I am now speaking from the standpoint of the workload and representativeness of litigation as a tool for making policy decisions from a worker’s perspective.

    Here’s a piece by Malmsheimer and Anderson that seems to be fairly comprehensive and systematic. Others?

  6. When the Malmsheimer and Anderson report issued in 2008, I recall being frustrated that the authors missed the forest for the trees. Re-reading the report now has not lessened that feeling.

    The report’s data show that the Forest Service loses about the same number of cases each and every year (Figure 4 on page 7). Yes, the percentage of cases lost varies, with higher caseloads equally a higher win percent for the FS. But the absolute number of cases lost (about 10) remains steady with no sign of improvement through time.

    I wish the authors had found some means of ranking cases based upon their importance. Losing one significant, precedent-setting case (e.g., the spotted owl) hardly makes up for winning ten frivolous pro se challenges. In other words, the report’s emphasis on winning percent gives scant solace to the FS if the fewer cases that it loses are also the most important ones.

    A more in-depth analysis of the data might also educate the FS about the kinds of cases it loses. For example, although the agency enjoys a 70% win ratio overall, its success when yours truly is on the other side is less than 10% :). That’s the kind of data mining intelligence that might be of some use to policymakers.

  7. I find it kinda ironic that the GAO report and findings were critiqued as being too broad and general…then the Malmsheimer/Anderson piece was presented as being “comprehensive and systematic”…yet now Andy makes some excellent, specific points about the Malmsheimer/Anderson piece being too general.

    I also should point out that Andy’s 90% success rate with Forest Service litigation is pretty close to the success rate enjoyed over the years by the Alliance for the Wild Rockies, which was ID’ed in the GAO report as filing the most lawsuits during the time period.

  8. My point was based on your quote or statement “researchers found that for such a politically contentious issue there has been no comprehensive and systematic analysis of the outcomes of the appeals process.”

    What is “comprehensive” and “systematic?” Certainly there are a number of studies that describe a variety of aspects of appeals and litigation.
    Some of these studies occurred before the development of an internal database, so conceivably much of that information would be currently available.

    Also, I didn’t critique the GAO report for being broad and generic. It is only about fuels treatments, which is one (in our case, minor) piece of the puzzle (but that is the question they were asked by Congress, so that is what they needed to answer). I also said that given the useful data they presented, they could have arrived at different conclusions (“locally can be a problem”, in addition to “nationally is not problem”).

  9. I hate to keep doing this, but again I must point something out Sharon.

    The statement “For such a politically contentious issue there has been no comprehensive and systematic analysis of the outcomes of the appeals process” was not written by me. It’s not my quote or statement as you said above. Sorry.

    If you download the report, “Analyzing USDA Forest Service Appeals” from Northern Arizona University’s Ecological Restoration Institute, you’ll clearly see on page 12 (in the executive summary) that this statement was actually written (word for word) by the authors of the study (Jacqueline Vaughn, Gretchen Teich and Hanna Cortner)….following a few years of their collective research into the matter. Thanks.

  10. Sorry, Matthew, when I wrote “your quote or statement” what I meant was that I couldn’t tell from the quote if those were your words or directly from the researchers themselves.

    I would just point out that many politically hot issues don’t have comprehensive or systematic analyses related to the issue. In the field of science policy studies, there are concepts that “more information” is not always the way to deal with value-driven issues.

    So while I was trying to point out that if you synthesized all the studies out there you might get closer to a broader and more comprehensive picture, I think at the end of the day, no study is going to convince people that problems they perceive are not real.

  11. Sharon emailed me yesterday and asked if I had additional litigation studies that might be helpful. Here’s a couple:
    – Miner. A.M.A., R.W. Malmsheimer, D.M. Keele, and M.J. Mortimer. 2010. Twenty years of Forest Service National Environmental Policy Act litigation. Environmental Practice 12(2):116-126.
    – Gambino Portuese, B.,* R.W. Malmsheimer, A.M. Anderson, D.W. Floyd, and D.M. Keele. 2009. Litigants’ characteristics and outcomes in Forest Service land management cases 1989 to 2005. Journal of Forestry 107(1):16-22.
    – Keele, D.M.,* R.W. Malmsheimer, D.W. Floyd, and J.E. Perez. 2006. Forest Service land management litigation 1989-2002. Journal of Forestry 104(4):196-202.

    I should point out that the purpose of our research was to document how the FS did in cases based on the final case outcome. If asked to define our most important contribution to understanding FS litigation, I would venture that it was documenting how often the agency settles — something that is rarely discussed in most conversations over litigation, yet occurs in roughly 1 in 4/5 cases.


Leave a Comment