Observations on Some Current Cases, and Introducing REAL

I think we really need to start a group toward reforming environmental conflict resolution as currently carried out through the court system.

We need an acronym.. for the time being, I will use REAL for “Reforming and Enhancing Appeals and Litigation” as it pertains to environment and natural resource disputes, particularly in public lands. Other acronym suggestions are welcome. You all have given me ideas, plus others outside this blog have, for ideas and actions that we may or may not agree to support in terms of:

1) Increasing transparency, public participation, and accountability in the resolution of disagreements involving public lands,

2) Through either direct action, or influencing legislation or Administration policy.

So I will be rounding up some of those ideas in the next few weeks.

I ran across these three pieces that help make my case for action:

1. (Litigation does not addressing the real issue). This story is “Feds file litigation to weaken ranchers’ claim” here. Where’s the best available, or any, “science” for that matter? Nowhere to be seen. It seems to me like conflict resolution folks could have been brought in on this to mediate the real issues, which seem to be 18% reduction, and not the Constitution. Likely to be more cost-effective to the taxpayer and more effective. But there could be history here that I’m not aware of, so those who know more, please speak up.

2. (Litigation does not address the real issue) Thanks to Terry Seyden for this one. This was in Forbes. This is a big enough deal that many folks are involved, including timber industry, and SAF (needed to be transparent about that). The same arguments could be made that this author makes,about other tinier projects, only without the broad base of (financial and other forms of) support.

On December 3, the U.S. Supreme Court will consider who is best suited to set national environmental policy – the experienced scientists and regulators at the Environmental Protection Agency or activist trial lawyers.



The former dean of the Yale School of Forestry and Environmental Studies, John Gordon, worries that, “Injecting permit requirements into this [BMP] process will only make the ongoing upgrade of our [environmental protection] methods slower and more expensive, diverting resources from reducing sediment to the legal machinery of permit review and litigation.” “In this case, environmental activists are not on the side of the environment,” he concluded. The EPA agrees; regulators have insisted for decades that permitting was not designed for—and does not work for—forest road runoff even as state forest road BMPs are widely acknowledged to have proven effective and efficient.

When the Supreme Court convenes on December 3rd, the critical question will be whether 35 years of effective regulation from EPA should be surrendered to America’s lawsuit industry.

To be fair, let’s take a look at this fellow’s background here. He is not one of our experienced folks in this area.. still he doesn’t claim that his opinions are a “scientific report.”

3. (Understanding the intricacies of the legal processes is not always easy, plus not addressing the real issue, plus not clear where the scientific information would lead.) Here is a link.

But Monday, U.S. District Court Judge John L. Kane rejected the settlement. At issue is a provision saying if there is a dispute over the implementation of the document, neither side can be found in contempt of court. The judge ruled that provision exceeds the authority of the two sides and could lead to them not reporting violations of the court order.

Tim Ream, attorney for the environmental group, called it a “very esoteric point” and said negotiations continue on reworking the settlement.

Dirt bike groups, who have funded and carried out maintenance work on the trails for years, have blasted the lawsuit as unfairly singling out dirt bike riders from hikers, mountain bike riders and others they say also impact the creek.

“We are not satisfied with the process to date,” said Don Riggle, president of the Colorado Springs-based Trails Preservation Alliance. His is one of three groups representing motorized vehicle riders that have joined the lawsuit as intervenors.

He said he agreed to a settlement with the Center for Biological Diversity with the understanding the ban would be in place only for the winter months, until the trails could be realigned, but last week’s settlement differed “in principle.” The document includes no timetable for reopening.

Here’s my information question, if three groups are intervenors, do they get to sit in while the settlement is discussed? To an outsider, seems like they should. Could someone explain how that works? ‘Cause otherwise it looks like a pretty closed door to the public.

16 thoughts on “Observations on Some Current Cases, and Introducing REAL”

  1. Read all this with interest, including the links, and agree that the courts and judges are much too involved in resolving environmental disputes.
    Could go on and insert my personal bias here in respect to the grazing issue and dirt bikes and such, but will close with an obvious observation…it isn’t just the enviro extremists who are using the courts to get their way. Our whole culture has gone litigation-crazy. Certainly frivolous lawsuits need to be weeded out, somehow, but as long as their are plenty of attorneys who will work for free, or for well-padded “institutes” or think-tanks, we are stuck in a swamp of suits.

    Assuming the DFR had good science and grazing studies behind her decision to reduce grazing on these allotments, and assuming the permittees had only their cultural heritage and centuries of use on their side of the issue, it seems highly unlikely that the issue could be resolved by dialog. And do we know if the parties tried to sit and whittle, and it didn’t work?

    I must add that it makes me cringe to think of being sued back in my USFS days for my decisions or recommendations to line officers. That is a great way to really gum up the works and stall any activity on the ground. Regardless of the grazing reduction decision, I sincerely hope this DFR is personally removed from the litigation. A blatant attempt to intimidate and silence her in her official job.

  2. Sharon: I think your idea is a good one, and it has probably never been implemented before because it really wasn’t technologically possible until the vast expansion of high speed Internet connections and widespread use of laptops, tablets, and smartphones the past year or two.

    The way I would see REAL (Reducing Environmental Appeals & Litigation?) is a web-based clearinghouse of all legal and regulatory actions directed at our nation’s land and resources. Each action or proposed action could be openly (NOT “anonymously”) discussed in blog-type forums in which everyone can readily and easily access ALL filings, minutes, correspondence, etc., related to that action.

    Theoretically, the government is already supposed to be putting things together in Plain English. It would save several millions of dollars to simply require that such documents be organized (“filed”), scanned and placed online as they are received. LIFO. If someone wants something packaged and shipped or mailed, they can pay for it. FedEx has got to be cheaper than DC by a magnitude or two, and does great with digital files.

    It would immediately become apparent as to who was doing what, and why, when it came to legal and regulatory actions having to do with public resources. FLAME (Federal Lands & Active Management of the Environment)?

    • Yes, that is definitely what needs to be done.

      One of the things I was proudest of in my career, was my small part in starting the electronic NEPA effort which initially started with getting the SOPAs available to the public in a consistent format. I would like to give a shout-out to all involved in em-NEPA from its inception to the present. Including especially an employee with the initials RL, the WO NEPA staff and detailers, as well as many others who contributed through various kinds of work and interviews, and Phase One consulting. When I was involved (way at the beginning) Phase One was great about understanding the value of working on what the folks in the field needed- twarn’t glamorous or high-tech, but made folks appreciate what IT could do to help.

      Many things like FS nepa docs and appeals are available to the public through this effort

      But three kinds of things that need to be added (IMHO) are 1) records of appeal resolution discussions (and whether meetings occurred), 2) all the litigation related documents including documentation of settlement discussions, and 3) related FOIA requests and responses.

      • You mean it is YOU, who is responsible for ME, spending endless lonely dark nights sitting in the glow of a computer monitor looking at FS NEPA projects? You either gave me my life back or took it away Sharon! Thanks.

        • “Responsible” is a strong word. My part was more like a particle of dust on the millstone of bureaucracy.

          Someone decided to have NEPA be part of E-Gov in the Forest Service, and I happened to be working there in DC at the time.

      • “But three kinds of things that need to be added (IMHO) are 1) records of appeal resolution discussions (and whether meetings occurred), 2) all the litigation related documents including documentation of settlement discussions, and 3) related FOIA requests and responses.”

        I would have to agree…this type of information is hard enough to find internally, the content to which could inform future management proposals. A clearinghouse for this type of information would be extremely useful.

        • I bet the public would be surprised to find how hard it is to get that information internally. I’m sure there is a reason, and a public discussion of this would be educational.

          • Sharon, I think we’d all agree that more transparency would be great. A clearinghouse for appeals, litigation, appeal resolution/negotiations, NEPA costs, litigation costs, EAJA costs would be awesome….a one stop shop website that tracks and documents all that info would be extremely instructive.

            The information exists, it’s just tough to tease out of all the various sources…I can find every appeal and complaint (lawsuit) very easily, but the judges decisions are almost very difficult to find without an internet search…acres negotiated out of projects in appeal resolutions are almost impossible to find without a FOIA request, unless you know who to contact.

            This information should be readily available to the “public”; they have a right to know the real nuts and bolts of what an appeal or lawsuit costs, not just a bunch of opinion crap served up in newspapers and blogs. I’m sure there’d be a lot more backlash if the true costs were made available.

            The real question would be who funds this effort?

            As a person who has to respond to innumerable information requests, I can tell you it would take a fleet of full time personnel to archive and update this type of information. Not likely to happen in this climate of downsizing and budget cuts, although the IDIQ contracts already exist. Maybe there is a benevolent non-profit out there who would agree that funding the flow of (unbiased) INFORMATION is the highest and best use of their money with regard to public land management

            • Something I’d like to add to JZ’s list, is just a simple FY budget for the individual forests. That is very difficult to “tease out” of monitoring reports…and most time on most forests it’s not included there. Anyone know where one can access individual forest budgets? From what I’ve found, the “timber sale” item of a forest is usually only about 10% of it’s total budget. It would also be great to compare it to past budgets.

              Another “wish list item” that will never happen is…why doesn’t the CBO, or some such agency, do an “audit” that compares NEPA costs on litigated VS. non litigated forests. SAy the Northern region to the Rocky mountain. Apples to apples. I assume a Senator must make such a request of the CBO…I can think of ten Senators in the west who might like such info.

              • About 6 years ago a retiring budget officer for a national forest in Region One came into our office and spilled the beans, as it were, on the true timber sale budget for that forest. Suffice to say, a major shell-game was in the works and the timber sale budget for that forest was closer to 50%, especially when you take into account all of the things that are done to facilitate the timber sale program.

                • Matthew.. sounds like you and Derek are in agreement that it would be good to know this information. It exists, in a variety of fascinating spreadsheets, so should be available fairly readily.

                  Say at its simplest, we could get someone to sponsor this project in the Forest Service. We could have a group composed of people with opposing views on our usual topics to get copies of the spreadsheets and analyze them from their differing perspectives.

                  Or maybe it would be more organized to first develop all the items on the list of the People’s Database, and ask for all of them at once? What do folks think?

  3. Ed, here is the link to the DN and EA. http://www.fs.fed.us/nepa/project_content.php?project=29637

    I couldn’t actually find an appeal for that project by the name, which is odd, because they must have appealed or they wouldn’t have “exhausted administrative remedy” and be able to litigate. Does anyone else understand this better?

    I did find numerous appeals by our friends at CBD and WEG. however.

  4. Like democracy itself, the courts are an imperfect means of conflict resolution, but we also have to accept that our system of accountability via judicial review by an independent judiciary is better than all alternatives. Most efforts toward reform can be traced back to an interest in avoiding accountability.

    • Tree, please cite your source(s) when you say that “most efforts toward reform can be traced back to an interest in avoiding accountability.”

      At first I was slightly put-out by that statement, but then chalked it up to emotion. Any further insight would be appreciated….

  5. Tree- I wasn’t thinking of redoing the Constitution. But there are possible tweaks. Like states that require mediation prior to divorce. Or the way the IBLA works for BLM. I believe that shining a light on what really goes on will help the public understand what the issues are and what possible improvement ideas might be.

    I think if we want accountability for FS outcomes, there are a variety of mechanisms, including ideas like independent public review and even different kinds of certification. I thought it was interesting that the lawyers at CEQ seemed to think these other mechanisms could only be valuable if part of the legal system. Best available thinking or conflict of interest?

    Thank you for bringing up “accountability.” I think we need to discuss what that term means to different people and professional backgrounds.

    But it goes both ways. It seems to me that people should also be accountable for their decisions to pursue litigation as a method for conflict resolution. As Jack Ward Thomas pointed out in his Uncertain Trumpet paper here..

    The EAJA allows citizens to sue federal agencies for non-compliance with law(s) and/or regulation(s). Winning plaintiffs are compensated for costs. Conversely, plaintiffs with low net worth (or have non-profit status) have no liability when they lose – no matter what havoc the suit may have inflected in terms of management delays and legal costs.

    Question: Does anyone have a copy of the report of the Tom Mills Taskforce on Accountability? Does anyone know if there has been a newer report by the FS on the same topic?

    • I am certainly for full transparency in our timber projects. To me, it is important that we earn the public trust, for the greater good.

      This summer, I had a concern about avoiding litigation of our collaborative project. We were directed to mark for cutting conifers blocking oak trees, as part of our restoration activities. Since this prescription was counter to the Sierra Nevada Framework, I questioned why we were risking litigation that would probably succeed. Their answer was that had NEPA support in their Forest Plan. So, as directed, I was somewhat aggressive in marking those trees over 30″ dbh, which would release oak trees to more dominant form. Now, they want me to remember where those trees are, and to black them out, deleting them from the sale. I guess my message, that there is MUCH more at stake here, finally sunk in.


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