12 thoughts on “Darn Obstructionists: Timber Industry, et al Planning Rule Lawsuit Filed”

  1. So, to be clear, I did not work on the new planning rule in any way shape or form, other than to review it.

    But the folks who did tried to hit a very small target.. where the litigators of the 2005 and 8 would not litigate, and the others wouldn’t either. Maybe it’s simply impossible to do, but I think they did a great job of navigating those compromises and did as well as anyone could have, and better than previous versions (on which I did work directly).

    For the record, I don’t think that litigation is a good way to go to solve these kinds of disputes. Just the same as the other, we spend a lot of time talking about what’s legal, producing FOIA documents about the process, etc.,

    when the real issue is whether there is really common ground where both sides can agree on the policy. But we won’t be spending any time on that, nosirree, while armies of people are finding, copying, indexing documents, and perusing them for examples of malfeasance or ineptitude. Meanwhile, the FS can’t even talk to our shareholders, the people of the US, about it because it’s in litigation (the cone of silence).

  2. So, to be clear, I did work with a large team on the original NFMA rules/regs back in the dark ages. A week in D.C. in August was not fun. I thought we did a reasonable good job on landmark eco-based forest management rules, attempting to implement NFMA and the intent of Congress.
    But since then the USFS and all public land managers have been swamped in new demands and uses at an intensity of volume and potential damage that was never foreseen back in the 70’s and early 80’s. And of course, Congress and the overtly politic USFS administration of the 80s saw fit to give mind-boggling new direction (in NFMA) but without the bucks or people or courage to truly implement. Nothing new for Congress…they do that all the time, but this was a double wammy for us back then.
    So this latest lawsuit is nothing new. Just another turn around the merry-go-round. A coalition of users/abusers who all want their part of “multiple use”. Back to the old days when similar “heavy thinkers” tried to convince us that MU meant that each use was required on each acre. There were actually people who tried to make that argumen!. Are we back to that again?

  3. So help me out here….I’m not up to speed on the planning rule….

    What is the relative merit of this suit? At first glance it seems to have merit.

    To anyone’s knowledge will there be additional litigation from the environmental side?

    What is the predicted outcome of this planning rule? Will forests that are currently “early adopters” be successful in ever getting a new FP done (in light of the lawsuits) or will the effort get killed as in prior attempts?

    • I’ll take the bait, JZ. If my old friend Mark Rutzick wins, the new rule is vacated and the old rule rules. Since the new rule includes an allowance for planning under the old rule already, nothing changes for the forests that meet the grandfathering criteria.

      If Mark and Mitt win, the new administration gets a free pass to re-write the NMFA rule. Yes, it’s possible Romney’s USDA will want to do a rule re-write if Mark loses, but much less likely with a court opinion that the rule is legal occupying the bandwidth.

      If Mitt wins, and Mark hasn’t yet lost, then Mark and the new USDA get to negotiate a settlement, which will give Romney cover to re-write the rule while continuing very slow (i.e., status quo) planning under the new rule’s transition provision.

      Will Mark win? First, understand that almost all complaints look persuasive at first glance. That’s what earns good lawyers their big bucks. Second, understand that most lawsuits against the government end up losing.

      So digging a bit deeper here’s what I see as Mark’s biggest hurdles. Ripeness and standing. In other words, until the FS adopts a new forest plan under this new rule, how have Mark’s clients been harmed? Actual, concrete harm — not hypothetical speculation of future harm — is necessary to move a case forward to a decision.

      Assuming Mark’s clients have standing, most of his claims are pretty squishy. Essentially, Mark is claiming that the FS has abused the multiple-use concept, which courts have said “breathes discretion at every pore.” This is angels-on-the-head-a-pin stuff, which judges abhor.

      But, there is one factor Mark has going for him. He drew his dream judge. And that’s the kind of good fortune that can forgive all legally rational sins.

  4. Assuming that DOJ can’t win on ripeness and standing, they will have to argue that wood and water can’t flow from the national forests in the long run without ecological sustainability. Ergo, the need for the new rule language to do the very things the plaintiffs insist national forests must do.

  5. And the beat goes on: endless arguments over whether a dozen oranges is more valuable than an E flat minor chord or less than the color mauve, all based on “the best science”. (Angels on pinheads are sooo medieval). The FFRC planning rule lawsuit (and this debate) is but a symptom of the real malaise. As long as these lands remain in federal ownership with its impenetrable labyrinth of laws, executive orders, regulations, manuals and handbooks (and their regional and forest supplements), all continuously changing with current political inclination, being re-interpreted by various courts, and administered by a huge and hopelessly entangled, top-heavy bureaucracy, nothing will change. The resources will remain unmanaged, beetles will multiply, megafires will burn, dependent local governments will face bankruptcy, schools will close, and forest-based communities and their families will dissolve.

    How can we avoid what seems so self-evident – federal lands whose highest and best use is timber production should be managed for that purpose rather than attempting, and failing, to manage them for a multitude of purposes. Do as we now for wilderness – focused management for a single purpose. Trust Management appears to be the solution to this multitude of problems. For more on this – http://www.wvmcconnell.net/?page_id=591

    • Mac: This is the third time I’ve followed one of your links, but the first time I’ve visited any of the other locations on your website. I liked what you had to say about humans being a critical part of the environment and agree with your assessments that logging and prescribed fire (NOT lightning fire) were two of the most powerful tools in a forester’s arsenal. I was also impressed with your work and publication history about biomass — we seem to hold similar perspectives, despite growing up and old in entirely different forest habitat types and conditions: http://www.wvmcconnell.net/


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