PEER: Alaska Wastes Millions on Fruitless Lawsuits

The following press release is from PEER (Public Employees for Environmental Responsibility). One has to wonder if any of the information and facts below concern Senator Murkowski in the least.  Also, I assume since some commenters on this site regularly rail against any and all lawsuits from environmentalists that these same commenters will take the state of Alaska to task for these fruitless lawsuits that are costing taxpayers so much money. – mk

Washington, DC — The State of Alaska is forfeiting substantial public dollars pursuing fruitless lawsuits against federal wildlife and forestry laws, according to documents posted today by Public Employees for Environmental Responsibility (PEER). The lawsuits highlight the lack of independent legal analysis prior to the state charging off to litigate against political windmills.

Documents obtained in public record requests filed by Rick Steiner, a retired University of Alaska professor and PEER Board member, indicate that the state’s attempt – instigated by Governor Sarah Palin, and then continued under Gov. Sean Parnell – to roll back federal protections for the polar bear cost the state budget approximately $1.5 million, the bulk of which came from retaining an outside law firm. Not only was the state utterly unsuccessful but it duplicated a suit already filed by the Alaska Oil and Gas Association and other industry groups.

Similarly, Alaska’s recently dismissed lawsuit seeking to invalidate the federal Roadless Rule governing more than 14 million acres of the Tongass and Chugach National Forests cost the state another $200,000.  These state cost numbers reflect only costs incurred by the state Attorney General. The U.S. Department of Justice likely spent comparable amounts of taxpayer funds successfully defending these state lawsuits, thus doubling the ultimate cost to public treasuries both in Alaska and the nation.

In addition, state costs are currently being calculated for Alaska losing its 2010 case seeking to conduct aerial wolf control in the federal Unimak Island wilderness, filed against the U.S. Fish & Wildlife Service; and in losing its 2011 case to overturn the National Oceanic & Atmospheric Administration’s endangered species listing for Cook Inlet beluga whales.

“Alaska would have had more environmental impact by dumping a couple of million dollars into a pit on the Governor’s residence front lawn and setting it on fire,” stated PEER Executive Director Jeff Ruch, noting that Gov. Parnell has not been shy about decrying “reckless lawsuits by environmental groups” while filing his own. “Public funds should not be used to subsidize political tantrums played out in court.”

A 2008 public records request by Steiner had revealed that the state’s own marine mammal experts agreed with the federal position that polar bears were in fact threatened due to shrinking Arctic sea ice. The Alaska legislature then appropriated $2 million to convene a “scientific” conference to gin up support for its stance against all federal ESA listings, but the conference was canceled.

Political intimidation in Alaska state service is not limited to scientists, however. In Alaska, the state Attorney General is a gubernatorial appointee. Thus, attorneys inside the state Department of Law are not in a position to exercise independent legal judgment about the soundness of arguments pressed by their employer. Gov. Parnell, a former ConocoPhillips executive, has been especially aggressive in pushing lawsuits against the federal government.

“These misguided lawsuits are making the State of Alaska into a legal laughingstock,” said Steiner, who also revealed that Gov. Parnell halted state planning for the effects of climate change. “In the polar bear listing case, the experts for the plaintiff (the State of Alaska) agreed with the experts for the defendant (the U.S.), and it was clear the state case was bound to fail,” he said. “These expensive episodes underscore the need for an independent, elected Attorney General to ensure that our state’s future legal filings are truly in the interest of citizenry of Alaska, and not simply the political interests of the current governor.”

Ironically, Sarah Palin’s Attorney General Talis J. Colberg, who filed the polar bear suit in 2008, recently expressed reservations as well about the political appointment of Attorney Generals in Alaska, writing: “I think it was a mistake to make the chief law enforcement officer of the state an at will employee of the governor…I believe Alaska would be better off with an elected attorney general.” Forty-three states now have elected Attorneys General.


Look at state polar bear suit costs

See Tongass roadless rule suit costs

Read Talis Colberg essay

View suppressed views of state marine mammal experts

Revisit Alaska’s abandonment of climate change planning

23 thoughts on “PEER: Alaska Wastes Millions on Fruitless Lawsuits”

  1. You asked me this question before, Matthew, and it was a great question, so I have done some thinking..

    1) I feel differently about elected officials and unelected groups in terms of accountability. If people don’t like what the Governor of Alaska likes, they can not choose that person in the next election. If I disagree with what (say) Earthjustice does, I have no recourse. No election, no public comment, no nothing.

    2) I don’t think litigation is the best way to resolve natural resource disputes. If I ever did, actually experiencing how it works would have quickly disabused me of the notion. As one of my colleagues (notably) said “it’s a crapshoot.”

    3) As to Roadless, as much as I think the policy was a step forward in general, the way it was done would not stand up to NEPA scrutiny (I don’t believe) if the roles were reversed and many folks chose to litigate. Here is how it feels to folks in Wyoming anyway:

    National groups composed of unknown people dictated policy on the land they live on and the state elected officials did not get to weigh in, even as a cooperating agency. There was a bit of a colonial feeling about it.

    Now in California, with the southern Calif forests, wasn’t not working with State “correctly” part of what the FS lost on?

    Anyway, courts appear to “arbitrary and capricious”; sometimes if look across their decisions.

    So I stand by my “courts are not the best place for handling resource disputes” but I do have sympathies for governments and for folks who aren’t able to engage in public processes to deal with their issue, like, to some extent, Kitty Benzar and some of the folks involved in recreation fees. Which is funny because I don’t agree with no-fees, I just think the whole recreation problem needs public rethinking.

    • Sharon, regarding your point number one, it sounds to me like you believe that only the government/elected officials should be able to sue the government.

      • No, I think lots of folks should be able to sue the government. However, I don’t generally think it’s a good way to manage forests (management by random judges on random projects)..I don’t mean to be disrespectful of judges, but I don’t know the law, and they only know what they are told about the forests by people seeking to win.. an inherently adversarial approach. I don’t like secrecy as to how decisions (settlements) are made, because the people who might have ideas and knowledge are nowhere to be found when that happens..

        • Sharon, you say “… I don’t mean to be disrespectful of judges, but I don’t know the law, and they only know what they are told about the forests by people seeking to win …”

          That is patently false. Even without knowing the law, if you really studied a range of the cases instead of cherry picking information from them to confirm your preconceived notions, there are some basic things you would know that are contrary to your assertion.

          Courts defer to government agencies regarding areas of their expertise and the interpretation of their own regulations. Courts do not wish to substitute their judgement on technical matters for the expertise of the agency’s experts, and they avoid as much as possible getting into a battle of experts. The Forest Service certainly knows how to play this to its advantage, enabling it hide a lot of mischief that should not go ahead. There are sometimes exceptions to such deferrals to the agency, but those are ones where for example the agency’s or its experts’ conclusions simply don’t follow from (e.g. in a NEPA case) the facts in the planning record. NEPA cases are generally limited to what is in the planning record, with rare exception under unusual circumstances.

          Also, both sides submit competing briefs, so even if the above were not generally true the judge would hear both sides — not just “people seeking to win.”

          • Larry, you say my statements are “patently false” another way to go about it would e to ask “on what do you base your opinion?”

            My opinion is based on personal experience… you are asking me to “study a range of cases” ? I was not “cherry-picking” anything. I was sharing my lived experience in my jobs at NEPA and planning in the Forest Service.

            What I found was that by the time physical facts get converted to legal arguments, information is lost and possibly twisted by the lawyers, who are indeed “seeking to win.” The courtroom is an adversarial system.. if we look (as we have previously on this blog) at divorce, folks have found that mediation is less of a drain on public (and private) coffers and does not arouse the (additional) passions of the adversarial system.

            • Sharon: Let’s review what you said in your previous comment, in which Larry correctly pointed out that your statement was “patently false.”

              You stated, ” I don’t mean to be disrespectful of judges, but I don’t know the law, and they only know what they are told about the forests by people seeking to win …”

              Larry pointed out a number of reasons why that statement of yours is patently false and I’d agree with him.

              I’d also go a step further and say that you don’t have a really good understanding of how settlements are made in the US Court system. Can you please name me one single instance of when a settlement involved the US Forest Service and the judge prevented representatives from the USFS from being a part of that settlement?

              Finally, the notion that judges should decide legal issues surrounding the Forest Service because they are not forestry experts is in interesting one. Fact is, judges aren’t necessarily experts in divorce, murder, theft, DUI’s, bribery, etc either….but they rule on cases involving these issues all the time. What federal judges are experts in is the laws of this nation, and unfortunately, too many times, the Forest Service fails to comply with those laws. Case closed.

              • It depends on your definition of “settlement”. The salvage project I worked on lost in Appeals Court and the Judges gave the plaintiff a “blank check”, asking them what they wanted, without any Forest Service input. There were still logs on the ground and much clean-up work left to do. The logs were “held hostage”, until more clean-up work was completed. Additionally, they dictated roadside hazard tree policy, demanding oversight of marked trees, before felling can occur. Another feature of the “settlement” was that if a passenger vehicle cannot travel on a system road, no roadside hazard trees would be cut.

                Again, the Forest Service wasn’t invited to provide input. They lost the lawsuit and “the spoils of war” went to the plaintiff.

                • Sorry, Larry, but I doubt the validity of your claims here about the Forest Service having no input at all in a court-negotiated settlement. Can you please provide the name of the timber sale or more specific information, so it can be verified, or not.

                  Also, who knew that inanimate objects could actually be “held hostage?” Interesting use of the term, especially considering national and world current events.

                  • Like I said, I don’t know if the decision was a “settlement”, or simply a decision to let the plaintiffs decide what they wanted out of the ruling. Doubt all you want but, it hurts your position. And yes, we did jump through their hoops and the plaintiff decided we were doing what we said we would do. They finally allowed us to skid those trees which were left to decay in the hot summer sun. It was almost a full year between the felling and harvesting of salvage trees, in both tractor units and in helicopter units. Of course, there was no ecological reason for withholding the harvest of trees already cut. Indeed, they were held as “insurance” for getting all the clean-up work done.

                    • Larry, Doubting the validity of your claim doesn’t hurt my position one bit. In fact, you have apparently refused to let us know the name of the project you’re talking about. Therefore, I’d say it’s pretty clear to any observers who’s position is being hurt here….especially since you now don’t even know if this was a “settlement” or not.

                      Anyway, once again I will ask….Can you provide the name of the project Larry so I can look into it further?

              • OK, well I got my impression from Chief Jack Ward Thomas and the quotes I picked out in my post here from his journal.

                If you weren’t on the blog in 2011 (not Matthew), you might want to review that post.

                “In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system

                So he was not saying that the FS isn’t there.. but that they don’t get to decide.

                I have been on “hopeful” settlement phone calls though.. and the dynamics appeared to be that DOJ wants to “close the ticket” (not criticizing here, incentives are powerful tools for human behavior) even if the settlement sets a de facto policy that is unfavorable to the agency in the point of view of agency people on the call…

                In fact, I’ve been told by attorneys later that our policy preferences couldn’t go there (where it seemed sensible for the agency to go) due to previous settlements.

                Another example is “let’s do more NEPA next time” being the settlement, when you suspect that that will just lead to more litigation next time and perhaps a bigger EAJA bill for the same folks who are plaintiffs on the current phone call, at the end of the days.. or years.. or decades.

                Because some people just philosophically don’t want projects, regardless of the bullet-proofing exercise you dutifully engage in, if you are a Fed.

                Anyway, nothing I’ve said strikes me as “patently false.”

          • What he thinks is of no consequence — he is quite ill-informed.

            He incorrectly characterizes the Forest Service admiinistratve appeal process as being: a ranger’s decision is appealed to the Forest Supervisor; when that fails, to the Regional Forester, then to the Chief of the Forest Service, then to the Secretary of Agriculture.

            In fact, there is one level of appeal (speaking of the recently replaced rule here), specified in the agency’s own regulations. Moreover, it is not surprising that the this next-higher level in the agency frequently affirms challenged decisions,

            The man’s allegations are off by a miile. This video demonstrates nothing.

            • “Larry”: Bill Hagenstein is one of the most informed North American foresters of the past century. As President of the Industrial Forestry Association from the 1940s until his retirement, he testified to Congress on forestry issues on many occasions. He has also been national President of the Society of American Foresters, coauthor of a well-known textbook on forest management, and has had a national forestry award named for him.

              I can see why you don’t use your last name. It is your opinions, and not Bill’s, that are meaningless. And “quite ill-informed.”

                • “Larry”: Listen to the tape all the way through, then comment. The opinion of an anonymous person doesn’t carry much weight. Bill’s opinions do, however. He’s the expert — you’re the one hiding in the shadows calling names and making judgments. Who to trust?

                    • Bob: I watched the video the entire way through, which isn’t really hard since it’s only 1 minute 28 seconds long. Larry obviously watched the entire video too, in order to offer his very correct observation that Mr. Hagenstein completely incorrectly characterizes the Forest Service administrative appeals process.

                      Sure, while Mr. Hagenstein likely knows a lot about forestry, he adds a few layers to the FS appeals process that only exists in his head and rural myths. So, Bob, when you write:

                      “Here’s what Bill Hagenstein thinks about that topic (in 1 minute, 28 seconds)”

                      And when that topic is the Forest Service appeals process and litigation and Mr. Hagenstein goes on to completely demonstrate he has no understanding of how the appeals process actually works, seems like Mr. Hagenstein is fair game at that point.

                      Also, Bob, please cut it out with the anonymous crap. For starters, I’m pretty sure Larry isn’t being anonymous, as he’s posted here before and hell, Andy Stahl wrote an entire article on this blog that featured Larry’s work. Besides, Sharon, Andy and others have allowed and even encouraged anonymous comments on this blog from Forest Service people, so if Larry only chooses to use his real first name that’s his right.

  2. Despite what people in Wyomng may claim, the Roadless Rule was not a “policy dictated” by “national groups composed of unknown people.” The process involved about 600 public hearings and elicited about 2 million public comments — a record in U.S. democratic process.

    • Well, I wasn’t working for the Forest Service then, (edit.. yes I was, but at OSTP on a detail.. I got to be involved in clearance of the 2000 planning rule, but not roadless).. so I don’t know as much about it… but I think Wyoming asked to be a cooperating agency and was turned down. I can say that they did not feel that their opinions were asked or taken seriously..

      When I worked on Colorado Roadless for many years, people would tell me stories- FS folks about how they felt the process was not really open… and they felt railroaded. People I respect told me that from the perspective of the field level. Part of that was a rush to finish before the close of the Administration ..

      I heard their stories and I believe them. Maybe someone who was involved… say a retiree… could tell their perspective. How did the process feel to you, where you were working?

      You know, I read all the letters for all the Colorado Roadless versions prior to the last one (long story..) and I have to say that more form letters does not make a more democratic process..

  3. And I’m sure that 99.9% of the comments were for the roadless rule….which if I recall…was about the margin of victory the last time Saddam Hussein ran for office.

    • Yes, great comparison Derek. After all, millions of American citizens speaking up to support some rather modest protections for their remaining public wildlands is pretty much exactly the same thing as oppressed/brutalized/terrorized Iraqis being forced to vote for Saddam, or else face the consequences, which would likely include the torture and/or death of themselves and their family members.

      Geez Louise….

      • OH Mathew…just funnin…these “form comments” or “point and click comments” or however it’s done is just another example of gamin the system to provide enviro propoganda. I’ll bet that 90% of the comments were in support of the rule. Can you tell me? How many “new stories” have I seen that headline, “vast majority of Americans support {insert project}.” But in the few cases where your media allies slip up and accidently tell the reader “what percent support it”…it looks ridiculous. and kills the effort. When the reader says 90% of comments were in support….the reader knows it’s bogus. Much like Saddams’ bogus election numbers. May I make a suggestion to your minister of propoganda? Game the system so a more “believable” number are in support…say…75% . So…next time, perhaps some of the enviro group memebers can “take a hit for the team” and vote “opposed.”

        Never the less, some in the media have caught on to the game, and their reporting of the “comment numbers” has dropped way off. Frankly, it’s nothing but cheap tawdry propoganda. The “local” people don'[t bother commenting anymore because they know it’s a useless endeavor. The USFS won’t listen to them anyway. Lotsa bitterness out there in the West.


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