Judge dismisses timber industry lawsuit, maintains Tongass Forest Protection

If you’ve been reading this blog for a few years you’ve likely noticed a significant amount of hand-wringing from some folks anytime conservation groups look to hold the U.S Forest Service accountable through the federal court system.  However, what I find somewhat interesting is that when the timber industry and their allies file a lawsuit against the Forest Service the type of hand-wringing we usually see directed at conservation groups is mysteriously non-existent.

Readers may recall that last week we highlighted a Courthouse News Service article, in which an editor claimed that a lawsuit against the Forest Service’s new National Forest Management Act planning rules by an assortment of timber industry, off-road/ATV and grazing interests was the “the most obnoxious lawsuit I saw this week.”

Well, it turns out that the Courthouse News Service had another article last week which frequent commenter and reader David Beebe was kind enough to pass along.  Highlights from the article are below, or you can read the entire article here.

A federal judge dismissed claims filed by the Alaskan timber and building industries that a 2008 forest plan reducing the amount of commercial forestland in the Tongass National Forest violated federal law.

The Alaska Forest Association and the Southern Southeast Alaska Building Industries Association sued U.S. Secretary of Agriculture Thomas Vilsack and the U.S. Forest Service in 2008 over the Forest Service’s plan to reduce the amount of land available for commercial foresting from 2.4 million acres to 670,000.  The revised plan also adopted an adaptive strategy for managing lands for timber sale that the industries said reduced the acreage capable of supporting financially feasible timber sales to approximately 103,000 acres.

But because of a previous challenge to the plan filed by the Southeast Conference and several other Alaskan cities and municipal organizations that failed in federal court, U.S. District Judge John Bates dismissed this challenge under the legal doctrine of Res judicata, which prohibits re-filing legal claims that could have been litigated in prior actions.

The Alaska Forest Association, as it turns out, is a part of the Southeast Conference, and supported its similar litigation against the Department of Agriculture and the U.S. Forest Service over the plan.
   The Forest Association, or AFA, unsuccessfully argued that because the Southeast Conference wasn’t aware it was representing the AFA, the doctrine does not apply.

“Plaintiffs’ argument is dubious on these facts,” stated Judge Bates. “AFA submitted an affidavit supporting Southeast Conference’s standing argument … which should have alerted the Southeast Conference plaintiffs that they were representing AFA.”

12 thoughts on “Judge dismisses timber industry lawsuit, maintains Tongass Forest Protection”

  1. Thanks Matthew.
    This provides a glimpse into the Tongass resource war theater in which industry actors with everything to gain personally, combine their legal war chests to repeatedly attack with impunity, “big government” impediments. These include court-ordered conservation on devastated landscapes.

    They are using any legal argument necessary (however “dubious”) to accomplish this — while enjoying total immunity from the same censure usually heaped upon environmental defenders.

    In this case, the pulp mill era duopoly (established by Alaska’s delegation) got virtually anything they wanted on the taxpayer dime — also at great cost to our island-based rainforest ecosystems. Not only did this duopoly destroy the existing mom and pop timber operations with a sustainable annual cut on the Tongass, but both the federal and native corporate timber programs were allowed to export billions of board feet of oldgrowth to the Pacific Rim countries — in the round, or minimally processed — for a fraction of the real stumpage value.

    This massive looting of public resources provided a brief boom, but was of course, wholly unsustainable. After all, those trees were several centuries old. It will take several generations of would-be loggers before anything remotely resembling what was exported to be available to support local economies again.

    Simply put, the industry litigants cut themselves and rural communities out of a sustainable timber future. They will continue to do anything necessary to turn the rest of the Tongass into their private tree plantation.

    Update:
    Rumors have it that some of the Gang Green of the Tongass Futures Roundtable renown, have recently cut a deal with the Alaska Delegation trading the passage of “Tongass 77” for a revised Sealaska bill to be packaged and passed, quid pro quo-style, in an Omnibus lands bill.

    Why would Gang Green (publicly on record supposedly opposing the Sealaska bill), be throwing 9 rural communities (directly impacted and protesting for years), under the Omnibus? Because Gang Green is being funded to do this.

    The multi-billionaire Gordon and Betty Moore Foundation (and other corporate foundations) have been funding the Tongass Futures Roundtable, National Forest Foundation, and this effort (slickly marketed as “conservation of wild salmon ecosystems” under the “Fish, People, Place– Southeast Alaska”, and other monikers) for several years now.

    http://www.moore.org/grant.aspx?id=4255
    http://www.moore.org/grant.aspx?id=4256
    http://www.moore.org/grant.aspx?id=1212
    http://www.moore.org/grant.aspx?id=1250
    http://www.moore.org/grant.aspx?id=4348
    http://www.moore.org/grant.aspx?id=4332
    http://www.moore.org/grant.aspx?id=4363
    http://www.moore.org/grant.aspx?id=4331
    http://www.moore.org/grant.aspx?id=994

    This is what the era of “collaboration”, “restoration”, and “stewardship”– under the auspices of agency “Transition” — looks like on the Tongass.

    This lays bare the corporate agenda, ushered in by former timber industry lobbyist and Under secretary in charge of the USFS, Mark Rey. “Collaboration” simply devolves decision making on national forests to exclusive local “stakeholders”, many of which are receiving hundreds of thousands, if not millions of dollars to lobby the merits of the corporate agenda to the public and Congress.

    A full investigation of improper lobbying activities by 501 c.3 nonprofits is definitely in order.

    Reply
  2. Matthew, I don;t think your statement is fair. I don’t know exactly what “hand wringing” is and I have a variety of issues with litigation as a tactic.

    Here is what I said about it “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).”

    Was that “hand-wringing” or not?

    I for one feel exactly the same way about litigation almost whenever it is used as a tactic. I feel a certain sympathy for some where egregious violations have taken place. don’t think that this one is egregious..

    Reply
  3. “I for one feel exactly the same way about litigation almost whenever it is used as a tactic.”

    Sharon,
    Litigation is a last recourse of citizens facing corporate domination of the commons. It employs adjudication, which is at the center of Constitutional law. Adjudication is how disputes go to the next level of resolution. But calling the basis of how our republic operates a mere “Tactic”?

    On the other hand, (so-to-speak 😉 the term, “handwringing” used by Matthew (which is defined as a gesture expressing “distress or worry”) is being called “unfair” by you. Given your oft-stated opinions — against — citizen defenders of environmental law and ecosystem integrity taking their case to court, my sense is, your stated positions can be fairly interpreted and fairly characterized as distress or worry.

    My issue (as discussed above) is that billionaires are funding “collaboration” — literally paying environmental organizations to cut deals with corporations rather than suing them.

    They are making the same arguments as you are — claiming the real issue is whether there is really “common ground where both sides can agree” on policy. While there may well be commonalities to be found, they are influenced by this fiduciary relationship and therefore not necessarily in the best interests of present and future generations of Americans and other denizens of the planet.

    By embracing the corporate argument and ignoring the obvious conflicts of interest behind the thin veil of “philanthropy” funding “collaboration”, you are implicitly endorsing the reigning dominance of corporate influence on the full spectrum of American politics — especially as it relates to National Forest Policy.

    An excellent example is the establishment of the National Forest Foundation (composed of and run by corporate “partners”) and its cheerleading for collaboration, the USFS “carbon capital fund” and other neoliberal goals such as outsourcing agency functions to corporate front-groups such as The Nature Conservancy (which not coincidently, also has assets of several billions of dollars and is ALSO cheerleading carbon credits, payments for ecosystem services, and “collaboration” on national forests. Another example is the National Fish and Wildlife Foundation. These characterize the corporate capture of virtually all sectors of federal resource management agencies.

    It befuddles me as to why these examples of agency capture (mirroring the historical predicament of agency capture)– which has been at the center of decades of national forest mismanagement — doesn’t seem to be an issue with you.

    Rather, the dominant issue expressed by you is that the courtroom is not the place to resolve these recurring conundrums of national forest mismanagement.

    Forgive me if I confuse your position with the reigning corporate position on these matters, but the similarities are most striking.

    Reply
    • David- I don’t think that there is such a thing as “agency capture” because I have seen the agency shift when different administrations come in,as our government should. I don’t much like that in one , say energy corporations have privileged access and influence over policy, and the other, litigating NGOs have privileged access and influence over policy. You seem to be saying that these different groups are essentially the same, and I don’t see it that way.

      The agency works for the Administration and is not a separate entity.

      I’m hoping you are not implying that I am “corporate”; only in the sense that I drink beer at Golden City Brewery and coffee at Noa Noa, which I believe to be corporations. To me, small timber companies are a different kettle of fish than, say, a large coal company, or Vail Resorts. It’s hard for me to think of painting small and local, and big and multinational, organizations with the same brush.

      Sort of like if I said the the Sierra Club, Colorado Wild, Friends of the Wild Swan, and the Native Plant Society and the Ruffed Grouse Society were all part of the “environmentalization” of the country.

      Reply
      • Sharon,
        Thanks for providing these insights into your views on agency capture. But agency capture, like anthropogenic global warming, does not cease to exist because an individual refuses to believe “there is such a thing”.

        Clearly, agency capture is much more than a “shift” due to a change in administrations. I’m referring to the inexcusable violations of the public trust occurring with agency capture. These violations of public trust have real consequences to real people and the mismanagement of public resources, public health, and welfare.

        I’m completely flummoxed how you could get the impression I was conflating energy corporations influence over policy with litigating NGOs. I never mentioned breweries, resorts, nor small timber companies either. (Besides, it’s the collaborationist NGOs cheerleading free market environmental agendas that are being handsomely rewarded (click on the links) not the litigating NGOs.)

        Maybe if you stick to responding to what I wrote, rather than pretend what was being stated means something entirely different, we could get further down the road in this discussion. (On second thought though, that road does not exist for you. )

        A couple of years ago a Senate subcommittee on administrative oversight and the courts went down that road, and held a hearing entitled,
        PROTECTING THE PUBLIC INTEREST: UNDERSTANDING THE THREAT OF AGENCY CAPTURE
        http://www.gpo.gov/fdsys/pkg/CHRG-111shrg64724/pdf/CHRG-111shrg64724.pdf

        It contains some interesting reading, (though perhaps not interesting to those who refuse “to believe there is such a thing” as agency capture.)

        That’s the delightful seduction of denialism isn’t it? Even scientists such as yourself can refuse to accept an empirically verifiable reality and supplant that reality with the fanciful notion our national forest mismanagement and interference in its “restoration” is the result of the “tactics” of environmental misfits such as myself.

        By denying that agency capture exists you’ll not have to admit the same corporate forces which are manipulating political elections with unlimited (anonymous) campaign contributions find it vastly easier and cheaper to simply capture environmental NGOs to do their “collaboration” bidding.

        Thanks again for this opportunity to understand where you’re coming from on this matter.

        Reply
  4. When people sue, and win, to “save” dead trees along roads, SOMETHING is VERY wrong in the courthouses.

    Reply
    • When the U.S. Forest Service repeatedly loses in the federal courts SOMETHING is VERY wrong with the way the Forest Service is managing our public lands.

      Reply
      • That is one of the big problems, Matthew — the USFS ISN’T managing our nation’s forests, good or bad. The defacto managers have become the courts and the lawyers who write our rules and regulations. And yes, there is definitely “something very wrong” with the way this is being done. Our lands and economies are a mess and it is Congress and the courts who are primarily responsible — not the USFS.

        Reply
      • Matthew,

        To understand your statement, I would need to know whether the FS has the same ratio of wins to losses as other federal agencies- I’d look at EPA and FWS, and also BLM. That is, if you’re saying that there is more wrong with the FS than with EPA, FWS and BLM. Or are you saying that all these agencies are equally culpable in “wrongness”?

        Reply
        • Sharon, If it was completely obvious my statement was a re-write of Larry’s comment. But yes, I would say that the U.S. Forest Service has a long history of having problems following our nation’s laws, regulations and ensuring that the public is afforded meaningful participation in national forest management, as required in NEPA, NFMA, etc.

          Reply
          • Not to name names, but having worked with CEQ for awhile, getting an overview of other agencys’ NEPA- I would say that the FS does more and better NEPA than many other agencies. For some reason, environmental NGO’s have not gone after litigating other agencies with the same degree of enthusiasm, and so I think the level of FS NEPA is simply coevolution to the situation given.

            As you know, the CEQ NEPA regs are the same for all agencies.

            Reply
          • But, Matt?? Why not DIRECTLY address the fact that Chad Hanson sued, and won, stopping a project that only would cut roadside hazard trees?? (Of course, it was about “suspected” blackbacked woodpecker “habitat”, along ALL roads)

            Are you OK with the government not making Forest roads safe?!? Which roads should be made safe? Only paved roads? Will we have to sign disclaimers, giving up our rights to sue the government, if a dead trees hits us, on a drive in the woods?

            Reply

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