ESA: “sue and settle” listings

An article from E&E News, posted for (polite?) discussion. One point to discuss: Should the FWS and other agencies be required to open proposed settlement agreements for public comment? I say yes, if only for transparency. What is legally required?


Natural Resources panel to explore ‘sue and settle’ listings

Jeremy P. Jacobs, E&E reporter

Published: Monday, July 29, 2013

House Republicans this week will again take up one of their favorite issues: supposed closed-door legal settlements between environmental groups and regulatory agencies.

The Natural Resources Committee will meet to discuss how “sue and settle” practices influence endangered species listings.

Republicans have charged that sue-and-settle cases — where an environmental group sues to force an agency to take action — permeate several areas of environmental law. They contend that the groups collude with agencies such as U.S. EPA to craft settlements sympathetic to environmentalists’ concerns.

They also say conservationists have taken advantage of the practice on endangered species protection, filing lawsuits that require the Fish and Wildlife Service to consider hundreds of species for endangered or threatened status.

Last week, the House Judiciary Committee marked up H.R. 1493, which would force agencies to open proposed settlement agreements for public comment.

Democrats and environmentalists steadfastly oppose the legislation and Republican efforts. They claim that the lawsuits, which are permitted by the law, are a way for citizens to force agencies to carry out their mandated responsibilities. They also note that the rulemaking process is open to the public.

The Judiciary panel nevertheless sent the legislation to the House floor (E&E Daily, July 25).

Schedule: The hearing is Thursday, Aug. 1, at 10 a.m. in 1324 Longworth.

Witnesses: TBA.

41 thoughts on “ESA: “sue and settle” listings”

  1. Well, well – Sounds like it is time to Let The Sun Shine In – People who object to transparency have something to hide.

    So, Matthew and TreeC123 what do you think? Why would Environmental groups need to settle suits behind closed doors with the EPA, FWS and other federal agencies when the environmentalists don’t represent all parties affected by the outcome of their wheelings and dealings? Does that sound like it is reputable and something to be proud of?

  2. Is this the same EPA where senior officials use e-mail “aliases” to hide from transparency. If you have nothing to hide, then why hide behind an alias. The hackers who exposed climategate, would find fertile ground in the halls of the EPA. Now why would Democrats be opposed to transparency?

  3. Of course, this is Congress, which is avowedly and unadulteratedly partisan and E&E is only reporting it. Nevertheless Chief Jack Ward Thomas, a Clinton administration appointee some of these same points in his book. Hopefully he has a bit more street credit than House Republicans:

    “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.

    here and here are the links to two JWT posts from this blog, that is posts about him and not by him.

  4. It should be noted the plaintiffs are GOP attorneys general from mostly red states looking to isolate the environmental community.

  5. The brief article above does not mention which agency decisions were subject to “settlements sympathetic to environmentalists’ concerns,” so it’s difficult to comment on the merits of any given settlement that led the House Judiciary Committee to send this bill to the House floor. If anyone has a link to testimony from a relevant hearing, that might be helpful to better understand the cases in question.

    It’s not clear what substantive outcome the bill aims to achieve. The bill lays out a public comment process and requires that public comments be responded to and added to the court record before a court signs off on a settlement. But to what end? The bill does not appear to mandate that public comment change either the agency’s decision to settle or the court’s decision to sign off on a settlement. Isn’t this just more bureaucracy at taxpayer expense that some folks in the House dislike intensely? If the agency agrees to undertake new rulemaking, NEPA and other public processes will kick in again, requiring notice and comment once again.

    Perhaps the real goal of the bill is the disclosure requirement for any award of attorney fees made, and the annual report every agency must make to Congress on lawsuits, settlements, and attorney fee awards under the bill. But again, the bill doesn’t appear to specify if or how such disclosures and reports are meant to affect any substantive outcome.

    When it comes to ESA listing settlements, a settlement to make final decisions by certain dates in the future doesn’t really seem all that “sympathetic to environmentalists’ concerns” when the statute itself specifies deadlines the U.S. Fish and Wildlife Service must follow when reviewing petitions for listing. By the time a settlement is reached in those cases, the agency is usually well past a particular deadline.

    The notion of “sweetheart settlements” without public review is not new. You can download a PDF of an article about the G.W. Bush Administration’s use of such tactics on public lands policy issues, written in 2004.

  6. Whoa folks! Before you start trashing Matt and Tree, you should understand where the EAJA comes into play. From my (limited) understanding it’s the the DOJ that deals with EAJA claims…far from the individual projects at the Forest level (for instance, and for the purposes of our “debates”). There is certainly something to be said for legislative reforms to the EAJA (basically “raising the bar”, or making it more of an economic gamble for litigants), but the law has it’s purpose…perhaps not best suited to forest management, but that’s the way it’s being played out. Also, if you look at the EAJA payout figures (astounding as though they may be to us), they aren’t even close to a drop in the bucket as far as Gov’t spending………..something I kinda know about…………

    • Table #6 in this link shows that 69% of the dollars awarded went to environmental groups. Table #7 lays out those groups who were a plaintiff in more than one suit. And all of this is only suits against the USFS. As to the significance of the dollar amounts, unfortunately a little here and a little there and it’s not long before you get to some real significant numbers. Roughly $4.5 million could be well used elsewhere. Just think, even half of that could pay for a lot of hoot owl hunters to increase the survival chances of the evolutionarily doomed NSO.

      Oh, then there is table #8 showing some pretty well heeled environmental groups that a certain enviro in this NCFP group said don’t exist in a comment elsewhere in NCFP.
      Oh, then there is this quote from #2 under Conclusion: “some organizations’ raison d’eˆtre is to initiate “public interest litiga-tion.”
      Oh, then there is also this in #2 “many or-ganizations have found that litigation provides an effective policy forum. It is often a more effective and less costly al-ternative to (1) the resources required to effect policy changes in administrative and legislative branches or (2) partici-pate in collaborative public land-management efforts.”
      Oh, then there is this quote from #3 under Conclusion: “note that many are quite well financed and therefore not the class of plaintiffs for which the law was designed to provide access to the expensive federal litigation system”

      Ooooppps, looks like our enviro was wrong again on several issues. Collaboration just doesn’t seem to be in the cards for some of these groups but then they do have infinite wisdom so, I guess it’s right even when it is wrong.Ooooppps, looks like our enviro was wrong again.

  7. Larry

    Re: “It should be noted the plaintiffs are GOP attorneys general from mostly red states looking to isolate the environmental community.”
    —> So what, I don’t care if they are card carrying communist party members. If it adds to transparency, I’ll take it.
    —> Sounds like sour grapes. Let’s see, the environmental community, which has been isolating the non environmentalists from back room deals, protests that they are going to be isolated by bringing things out in public. Hmmmmmm, how is anyone isolated if everything is made public?


    Re: “It’s not clear what substantive outcome the bill aims to achieve. The bill lays out a public comment process and requires that public comments be responded to and added to the court record before a court signs off on a settlement”
    —> I don’t understand what is so difficult to understand here. Additional info is added to the case “before a court signs off on a settlement”. It’s right there, the bill is designed to allow opposing viewpoints to have more opportunity to influence the court’s decision as to whether or not they want to sign off on the settlement – that is the SUBSTANTIVE OUTCOME. Or is it still not substantive because nothing but your point of view is substantive? If the plaintiff has a sound case, they shouldn’t care what light shines on their back room deal. If they don’t, then I certainly understand why one would want to keep opposing facts from shedding light on their darkness.

    Re: “Isn’t this just more bureaucracy at taxpayer expense”
    —> Methinks you protest too much. Tying up bureaucrats at taxpayer expense behind closed doors is good but doing it out in the open so that the court can consider opposing viewpoints is bad. Gee, maybe I’m a little slow but, somehow that just doesn’t seem to be logically consistent. Let me give it another shot: tying up bureaucrats for environmentalist causes is ok but it’s not ok for those who have facts and informed experience to support an opposing view point? Ok, now I get it – Environmentalists are always right, have no ulterior motives, are ego free, perfectly consistent thinkers, and are otherwise pure as the driven snow. Your right, sorry that it took me so long to catch on. So, why don’t we just have the federal agencies get out of your way and let them implement whatever policy you deem appropriate in your infinite wisdom. Excuse, me I think I’m going to be sick. Doggone, where’s that air sickness bag when you need it?

    • Gil: I am totally with you, Sharon, and the others. Taxpayers have been promised “transparency” on government decisions and agreements for years — and, if anything, backroom “science” and backroom management negotiations have become so blatant and accepted, we need legislation to untangle it? Well, we just got a decision that the 1937 O&C Act needs to be followed (75+ years after it was adopted). Talk about hollow victories! What next? will the USFS have to start following the 1897 Organic Act?

      Apparently, these backroom deals with Enviros have been taking place since Jack Ward Thomas was politically appointed by Bill Clinton to implement the Clinton Plan for NW Forests. And it’s still going on? wow.

    • My point regarding “substantive outcomes” was that the bill’s language provides a very NEPA-like notice and comment process, which is procedural and doesn’t dictate any outcome. The bill’s language doesn’t tell a court how much weight, if any, to give public comments that dislike or disagree with particular settlement terms, so it’s unclear whether this additional process would avoid “settlements sympathetic to environmentalists’ concerns,” which seems to be what bothers some members of the House. Maybe the result will be more lawsuits litigated all the way to the appellate level rather than settled earlier on. I’m not sure that is a preferable outcome.

      Here is the “public comment” language from the bill:

      (A) IN GENERAL- An agency seeking to enter a covered consent decree or
      settlement agreement shall accept public comment during the period described in
      paragraph (1) on any issue relating to the matters alleged in the complaint in the
      applicable civil action or addressed or affected by the proposed covered consent
      decree or settlement agreement.
      (B) RESPONSE TO COMMENTS- An agency shall respond to any comment received
      under subparagraph (A).
      (C) SUBMISSIONS TO COURT- When moving that the court enter a proposed
      covered consent decree or settlement agreement or for dismissal pursuant to a
      proposed covered consent decree or settlement agreement, an agency shall–
      (i) inform the court of the statutory basis for the proposed covered consent
      decree or settlement agreement and its terms;
      (ii) submit to the court a summary of the comments received under
      subparagraph (A) and the response of the agency to the comments;
      (iii) submit to the court a certified index of the administrative record of the
      notice and comment proceeding; and
      (iv) make the administrative record described in clause (iii) fully accessible
      to the court.
      (D) INCLUSION IN RECORD- The court shall include in the court record for a civil
      action the certified index of the administrative record submitted by an agency under
      subparagraph (C)(iii) and any documents listed in the index which any party or
      amicus curiae appearing before the court in the action submits to the court.

      • John

        Re: “The bill’s language doesn’t tell a court how much weight, if any, to give public comments that dislike or disagree with particular settlement terms, so it’s unclear whether this additional process would avoid “settlements sympathetic to environmentalists’ concerns,””
        —> GREAT – That is exactly how it is supposed to be – It is not my job or anyone else’s job to tell the courts how to rule or how to weigh opposing facts. I don’t have to have things my way, I just have to have the right to participate directly or indirectly in the process of presenting the facts which requires that I not be excluded by goings on behind closed doors. It is really inconsistent that environmentalists insist on solicitation of public comment periods requiring environmental impact statements before the USFS can flush a toilet but it is alright for them to make deals behind closed doors and not solicit public comment nor consider environmental impact statements for their deals. It is so conspicuously biased and akin to Chicago and Huey P. Long politics that I find it absolutely revolting.

        Oh, my, do you think that these horrible republicans might not be as horrible as they have been made out to be? Is it even remotely possible that some of them may occasionally have a sense of transparency, fairness, and faith in the judicial process? It’s kind of funny that, in this case, some democrats aligned with some environmentalists don’t seem to like sunshine. I’m not a fan of either party since we require them to lie in order to get elected but, after decades of observing how they all act, I am much more cynical of the hypocrisy of one of the two parties than I am of the hypocrisy of the other.

  8. Gil…methinks you need to calm, calm, calm down and refocus yourself. Look at what you are trying to do…win an arguement/debate on a blog.

    Nothing wrong with providing your perspective (welcomed), but realize there’s no “battle lines” to be advanced, or debate to be won….not here anyway. Occasionally Matt and Bob will “loveburst” (seems to be one pending), but generally folks know what they know.

    Try to disassociate yourself from your beliefs (on here anyway) and examine others thoughts….easier said than done (mea culpa). You and others can learn a lot by just observing vs. engaging in every arguement that counters what you believe in….I guess I’m just speaking from experience and trying to save you some angst.

    • JZ – Thanks for your concern – No angst here. Just 50 plus years of involvement in forestry. To stand by while others spout falsehoods is to condone their statements. To disassociate myself from my beliefs is to disassociate myself from myself. I am confused, how is it ok to provide my perspective but at the same time disassociate from the facts that my beliefs are based on? Wouldn’t that lead to meaningless prattle? How would that contribute towards making this a better world? I am not spouting mantras. I respond after I have examined “others thoughts” first for internal inconsistencies and then compared them to my data base of experience and training. I am extremely analytical to the point of being “anal ytical”. That is who I am. That is what made me a good employee and problem solver.

      I appreciate your advice but, no thanks. I am very well focused on what I think is important and do not see any need to refocus. Unfortunately, contrary to your statement, people do not always know what they know. I have and am still willing to admit that I am wrong when facts prove me wrong. Unfortunately, I do not see any willingness from the enviros to do the same or to provide documented facts so, I will continue to press them just as hard as they press me. Until they provide facts, I can’t learn from them.

      If nothing else, in this blog, I am learning what eviros have to say and I am practicing how to counter any falsehoods. It’s exercise that, should I ever get the opportunity to discuss these issues with someone (decision maker or other) with an open mind, will help me to present the facts as effectively as possible. I need a lot of exercise. 🙂

      • Fair enough Gil…just don’t want you to burn yourself out…as I pointed out before, it’s a fools errand to try and win an arguement about forest management with enviros, despite the facts because each side has their own pocketful of facts.

        I’m actually working on a transmittal letter right now for an appeal of a project that would harvest timber, so I can tell you all about “facts”. The process is fairly mechanical…the FS presents their facts, rationale and logic, the enviros rebut with their facts and values. They appeal, the project is reviewed and usually goes on to be implemented. Occasionally it goes to litigation where the FS and project are judged on procedural facts…not the principled forestry facts. So there’s the root of the problem there – the rules of the “game”. If you don’t like that, then you need to work on changing the rules instead of trying to influence/change someone else’s values, because I doubt we could ever get someone like Matt or Tree to buy off on the fact that regen harvest is a good thing for x, y, z reasons that you and I believe.

        Appeals/litigation might be a threat and a pain in the ass, but in terms of who’s the bigger threat to whom, I’d offer that I/we have three large timber harvest projects in the hopper right now. So do many other places. The show still goes on despite enviros exercising their right to try and stop it. I know the values and beliefs of all our routine appellents. I don’t try to change them,even when they are dead wrong or spew unbelievably far-fetched mantras, often in the papers. We simply thank them for their input and proceed on, it’s just part of the game.

        The point I was trying to make above is that there is a lot of learning to be done here…just don’t try and “win” everything…from the looks of it, Matt or his organization hasn’t appealled a project since the Garrity days. He and others provide differing posts, perspectives, viewpoints and logic that can be helpful (except for GW’s stuff) in strengthening our side of the rationale and logic. That’s what I take away.

        • Fair enough JZ. As you say “Occasionally it goes to litigation where the FS and project are judged on procedural facts…not the principled forestry facts. So there’s the root of the problem there – the rules of the “game”. If you don’t like that, then you need to work on changing the rules instead of trying to influence/change someone else’s values”

          So how do we “work on changing the rules” without being able to show that “someone else’s values” are causing great harm at great cost and that the rules are abetting their crimes of commission/omission resulting from selfishness or from Chicken Little syndrome?

          Re: “He and others provide differing posts, perspectives, viewpoints and logic that can be helpful (except for GW’s stuff) in strengthening our side of the rationale and logic.”
          —> I agree, but only in that it gives us the opportunity to work out our rebuttals to fallacious statements. Maybe I am too new here but I just don’t see where “they” have contributed anything positive in terms of “perspectives, viewpoints and logic that can be helpful”. I’d be very interested in learning that I am wrong because then I’d be able to try to build from what we agree on and move towards a more constructive conversation.

          Even enviros want a better world but the hangup comes when we try to define what constitutes “a better world” and the unwillingness of some to think through their short term wants to the implications for the long term consequences.

          • Gil, people on this blog are not the only ones interested in “changing the rules”; you can say that HFRA did change some rules; many in and around Congress seem to think that now is the time to change some more. What I’d like to do on this blog is talk about how the rules could be changed to work better. Once that is done and if people agreed enough to do it, folks could do a grassroots campaign to “get ‘er done”. And folks like Matthew and others can help us figure out which ideas they will think are utterly reprehensible and which are just bad.. no, I’m kidding, maybe some of the folks will like some of the ideas.

            After all, I agreed with Andy Stahl on the KISS planning rule. Bob has agreed with Matthew that certain kinds of information should be available (actually I think we all agreed on that).

            But the reality is that “changing the rules” will take power from some and give it to someone else. People usually don’t get with a program to disempower themselves, so are unlikely to support such a change. Many folks think the current system works just fine “if only the FS would follow the law” or can be tweaked “if only they would collaborate and use large scale NEPA” everything would be fine. So it would take many person hours of work to do this. And it would take regular people with no connections to the industry to go see their representatives and say.. “we need a better way to do conflict resolution for these reasons.. support this!” It’s agreeing on “this” that keeps us from being effective. But hopefully if we throw all the ideas on the table and focus some creativity on it, we could find something that would work and get allies to make it happen. Maybe this is too big of a dream or the countervailing forces are too powerful.. but there’s only one way to find out.

            Anyway, that’s my story and I’m sticking to it, as they say.

  9. Sharon

    We all have our pipe dreams don’t we? 🙂

    It would be great if we could use established science to resolve conflicts but if no one respects the professionals on the ground and their ability to determine what is effective and established science, it would seem to be a hopeless cause just like the case of the endangered Zork bird. Bob probably can shed more insight but, in case you aren’t aware, the Zork bird is a rare Russian bird that flies in circles of ever decreasing radii until he flies up his own derriere with a loud TSORK! 🙂

    My dream is to present facts so strong that the public will be able to see that the present conditions are the result of false science and will look upon the uninformed solutions and their proponents with derision and demand change that restores professional to their proper roles in carrying out clear, non contradictory, unified laws. Now, that is a pipe dream. 🙂

    Re your statement: “What I’d like to do on this blog is talk about how the rules could be changed to work better”
    —> I see where you are coming from but believe that it is a technical approach that will not get us anywhere. I just don’t see where any hows that we come up with will be accepted by anyone but fellow insiders. In my humble opinion, all that we can do is inform the public and our politicians of the failures of the enviros, point out the successful cases where sound forest management avoided those failures and stir the public to demand that their Senators and Representative come up with clear, non contradictory and unified laws based on established science rather than fears and emotional imaginings. If we present the facts in such a way that they can come up with sound solutions and think that it is their idea, we might have a chance. A public outcry is the only way that things will change. That is the same mechanism that the enviros used to remove sound forest management from our federal forests.

    To quote you: “Anyway, that’s my story and I’m sticking to it.”

    • Gil..I’m very optimistic about the future of forestry. The era of the radical enviro is done. I don’t think the public really cares about the science, their perceptions are based on simpler things like aesthetics and the basic human nature that abhors waste. 20 years ago they saw a raw clearcut in a sea of green and supported the enviros, today they see a green regen clearcut or WUI thinning in a sea of black or brown, and they wonder why the USFS didn’t do more of them. The Colorado public that was outraged 10 years ago at proposals to “thin green trees” to prevent a MPB epidemic from coming to a neighborhood near you, now support clearcutting those same dead trees before a wildfire comes to a neighborhood near you. MPB epidemics and wildfires are helping us now win the war of aesthetics…in short…the best thing for forestry is the MPB epidemic and wildfires…and I think we can all agree, whether you blame it on “climate change” or whatever, that wildfires are only getting worse…so time is on our side. It’s inevitable.

      I’d say it’s very positive when the CBD embraces logging in Arizona and endorses thinning to reduce fire hazard. I’d say it’s very positive when Harry Ried scores 100’s of millions to thin lake Tahoe…and is thwarted and irritated by the radical enviros. I’d say it’s very positive when enviro politicians like Mark Udall of Colorado, who ten years ago sponsored legislation that would gut the timber sale program “in order to save rather than destroy our national forests,” recently announced he’s had a “personal evolution” about logging and greatly supports it now. I’d say it’s very positive when the Nature Conservancy is clearcutting MPB killed timber on Ted Turner’s Montana ranch. I’d say it’s very positive when these “moderate enviro” groups like the Conservancy and Trout Unlimited are thwarted, irritated and frustrated by the radical enviro. I’d say it’s very positive when the League of Conservation Voters practically buys Mont. Sen. Tester’s election…AFTER he shoved a “Wolf Rider” through and introduced legislation that would increase logging by 10 times. THESE are the groups that influence national policy…not the radical enviros. It’s no longer “just a logging issue” anymore, it’s a “I don’t want the forests I recreate in to burn up.” These are “sea changes” in attitudes. This has greatly enlarged the support base for forest management.

      Like I said, fires are just going to get worse, and any attempts to “convince” the public that “wildfires are a beautiful thang” is laughable. Aesthetics over science. The public reacts to enviro blather that MPB killed trees doesn’t increase fire hazard by thinking, “wait a minute, dead wood burns in my fireplace while green wood doesn’t.” Simple perception over science. If significant change in forest policy doesn’t happen in two years, it’ll happen within ten. It’s inevitable…the pendulum is swinging our way. All the stars are lining up on our side…certainly you can see that.

      • Until we legally marginalize the serial litigators, we cannot claim the victory of science. People like Chad Hanson will continue to push for doing nothing, for fun and profit, using the blackbacked woodpecker as his poster child. We need to craft laws which cannot be easy legal targets. It’s odd that so many lawyers make terrible lawmakers.

        • Larry: The pattern seems to be that lawmakers (“elected lawyers”) create “terrible” laws that need to be constantly litigated. It’s called job security. Great for lawyers, bad for taxpayers. If this “habitat” strategy really worked as the Hanson’s and their lawyers of the world say it does, there would be enormous flocks of blackbacked woodpeckers inhabiting all of the giant burns that have been created during the past 20 years. We’ve been sold a bill of goods.

          • Bob- I’m not quite there… take NFMA. The 82 regs had a bunch of case law that sometimes seemed like increasing layers of the arcane piled on top of each other so the original ideas were so buried they were invisible.

            So when folks try to redo it, lawyers litigate, unless it is bristling with new and bizarre legal hooks (“e.g.,ecosystem integrity”).

            Congress hasn’t been involved since 1976 almost 37 years. To me, that’s the problem with the claims that what’s going on today with ESA and NEPA is legitimate because Congress had discussions once a long time ago.

            • Wow — 37 years! That certainly says a lot. That sounds more like a transfer of wealth through the generations than a job security strategy. Between Hastings and Walden and a few others, why don’t they revisit the ESA? I don’t know that much about NEPA, but it sounds like another job creation and land management reform opportunity. There are reasons I don’t bother to vote.

      • Derek.. It seems odd for me to defend “radical enviros” but I see a continuum. Sure, they can be annoying, like any ideologues. There’s nothing wrong with being radical in my view.

        There is something wrong with doing one thing and saying another (we’re OK with this agreement; oh no, did we say that , no now we’re not OK and want to start negotiating again). Not being able to trust their word. Note- I’ve observed non-radical groups doing this also.

        There is something wrong with fundamental dishonesty; that’s what I like about Mr. Suckling, no namby-pamby “we’re only trying to get the FS to follow the law” but “we’re going to use every technique at our disposal including psychological warfare on our public servants to meet our agenda.” People know that in many cases, behavior is more revealing than words. as in “your actions speak so loudly, I can’t hear what you’re saying.”

        I could go on .. and I can almost hear someone “the timber industry also does that” gets into “two wrongs don’t make a right.” Plus I don’t know that the timber industry has ever attempted to claim any moral high ground.

        Or perhaps the groups that do this honestly believe that the ends justify the means. But that is their karma, if so.

        Society’s problem with this is that we have set the table to enable certain groups with the help of settlements, power to make public policy through how we’ve made the rules. I think that’s the ultimate problem, not what the groups think nor their ideological fervor.

      • Derek

        That is wonderful news but no reason to set back in our rocking chairs. We still need organizations like the SAF to fan the flames of public outrage with simple incontrovertible facts. The NSO would seem to be a great place to begin the campaign.

        I too have been saying “the pendulum is swinging our way”. The only trouble is that I’ve been saying it for more than a decade which shows how little logic has to do with anything and how far certain groups will go to incite fear and use intimidation tactics to keep an already passive public from getting involved.

        Down here in the South, The Nature conservancy and some smaller groups have reversed course as they have come to understand and incorporate sound forest management in order to perpetuate the special areas that they want to preserve. On the other hand, we still have the Dogwood Alliance and others who are still strongly opposed to anything other than “nature only”. Speaking of the Dogwood Alliance, they made a big fuss about some chipmills that were contemplated for the area around Russellville, Ark. It turned out that International Paper had jumped in bed with them because they wanted to keep their wood costs down for their local paper mill. 🙁

        One recent positive is that I do commend enviros for is their intervention in opposition to converting coal burning power plants to wood burning power plants without being subject to the same pollution requirements –> —> The more sensible approach is akin to that of Kior as explained here

        • I quite agree Gil…and I don’t mean to disparage science. After I wrote my post, I thought that might have come across. When moderate enviros are jolted out of their dogma by MPB or wildfires and have a “personal evolution” and embrace forestry…the facts become very important. It becomes pretty obvious to them that thinning greatly reduces (it stops it) the severity of MPB and wildfire, and salvage efforts greatly reduces the severity of fire in MPB deadfall. I’ve posted my “clearcuts don’t burn” photos before showing the “green islands.” Colorado and Wyoming are doing lots of “roadside salvage” so the beautiful people can make it to their favorite wilderness trailhead. Well, in the future, when wildfires blow through, you’re going to see “green arteries” along these roads. Should be a cool visual on google earth.

          The whole science things brings up another point. Isn’t “forestry” a science? All we here is the sanctity of ecological science, but we seldom hear forestry referred to as a science. In the media establishment and on this blog.

          • Derek: The best I can do on this (Gil or Sharon can correct me), is “forestry” is the art and science of forest management. It is resource management using scientific information to achieve desired results (“objectives”). Forest Sciences is the collective group of forest-centric scientific disciplines used in the practice of forestry by foresters.

            • Ah.. it so happens that I have my “Dictionary of Forestry” right next to this computer. Thank you John Helms!

              forestry- the profession embracing the science, art, and practice of creating, managing, using and conserving forests and associated resources for human benefit and in a sustainable matter to meet desired goals, needs and values.

              note: the broad field of forestry consists of those biological, quantitative, managerial and social sciences that are applied to forest management and conservation.

          • Derek

            Re: “All we here is the sanctity of ecological science, but we seldom hear forestry referred to as a science”
            —> Ah, the beauty and convenience of selective memory loss. Gotta hand it to the enviros, they are the masters of twisting words, just like some politicians, but I am not interested in winning if I have to subvert the truth either directly or indirectly. If the pendulum does swing back, it will be on the basis of credibility on our side and the lack thereof on the part of uninformed enviros as you or someone else has already implied here.

            Sharon’s quote from the SAF Dictionary of Forestry is the correct definition. Unfortunately it is inadequate for someone who wants to understand what the definition means so that they can relate to it.

            My long definition/explanation of Forestry is something like:
            —> Forestry is the sound management of forests recognizing that a forest is a composite of many different smaller and varied forest types/ecosystems with each contiguous forest type constituting a forest stand generally consisting of one to a couple hundred acres (plus or minus) when under normal management. The management of a forest is coordinated over all of the component stands rather than treating each component as an isolated, independent forest. The result is that the total composite forest is a sustainable, dynamic, constantly transitioning, mix of healthy forest stands of various age classes and site (specific location) appropriate keystone tree species. This mix is dispersed over the entirety of the forest in order to provide as much diversity as reasonable between adjoining stands and to provide resistance to disease, insects, and fire while providing continuity over the forest for niche species.

            The forester, as a scientific generalist, manages the forest by utilizing the best established, current, supporting science as reported by scientific specialists and marries that knowledge with on the ground, time proven, location/circumstance specific experience when things don’t fit the text books. Special consideration is given to minor species when desired providing that doing so doesn’t drastically affect the keystone species and thereby eventually destroy the total forest ecosystem that drives the environment. <—

            Whew! Have at it. Where did I go wrong 🙂

  10. As I understand them, the ESA lawsuits result in a rulemaking process (governed by the APA) where the public has extensive opportunity to comment on proposed listings before final listing decisions are made. This public involvement step seems to adequately address the concern that the settlements actually set policy, when they really just set the policymaking machinery in motion.


    • The only thing you “have done wrong” that I can see, Pablo, is writing everything in capital letters and threatening to become angry with any responses you don’t agree with. Other than that, I’m really not too sure what you are talking about in regards to “rulings,” etc. What — exactly — are you referring to?

    • Pablo

      I can’t think of any comment of yours that was inappropriate. I saw where someone chastised you somewhere but I certainly did not agree with it. When they said something to the effect of not wanting you to get angry or blow up, I just couldn’t help but think that they must have you confused with someone else. Sometimes people think that reading someone’s words tells them about that person’s emotional state. Unfortunately, it only tells us what their emotional state would have been if they had said those same words.

      I understand and accept that you are having some translation difficulties between English and your native Chilean tongue which I imagine is compounded by the Chilean language being a dialect of either Portuguese or Spanish and therefore not available in Google Translate. I figured that that was part of your problem the other day when you posted a reply in the wrong discussion thread but I was still able to figure out what you were talking about.

      #1 Don’t sweat the small stuff
      #2 It’s all small stuff

    • Oh no…please continue to comment Pablo. I can’t think of anything you did wrong…I hope I didn’t offend you with one of my comments. Gill sez you’re from Chile…can you tell us about Chilean forestry…isn’t Weyerhauser down there?

  12. FYI, an article from E&E News today:

    Ashe defends settlement strategy before House panel
    Emily Yehle, E&E reporter
    Published: Friday, August 2, 2013

    U.S. Fish and Wildlife Director Dan Ashe told lawmakers yesterday that a landmark 2011 settlement with environmental groups helped his agency strengthen its implementation of the Endangered Species Act.

    “We’ve heard allegations, speculation and rhetoric about a so-called ‘sue and settle’ strategy. What we haven’t seen is supporting evidence,” Ashe said. “One aspect is true: The settlement was our idea, and we pursued it aggressively. But an accurate characterization would be ‘get out of court, and get to work.'”

    Ashe spoke at a House Natural Resources Committee hearing that focused on a favorite issue of Republicans: the supposed closed-door legal settlements between environmental groups and regulatory agencies. Republicans contend that such “sue and settle” practices allow environmental groups and agencies to craft settlements sympathetic to environmentalists’ concerns.

    In 2011, FWS entered into settlements with WildEarth Guardians and the Center for Biological Diversity, agreeing to issue final listing determinations for about 250 species over six years.

    Since then, FWS has seen an almost 96 percent reduction in lawsuits filed for missed deadlines on petitions, Ashe said.

    Much of yesterday’s hearing served as a forum for lawmakers to bring up the ESA listings that affected their districts. But Ashe also took the opportunity to dispute Republican accusations of collusion between his FWS and environmental groups.

    In lawsuits over missed deadlines for ESA petitions, FWS has no defense. The agency has missed congressionally mandated deadlines for responding to petitions for a species listing. The best avenue, Ashe said, is to settle “rather than waste taxpayer dollars in a losing battle.”

    “The settlement schedule provides unprecedented predictability and transparency for stakeholders,” Ashe said. “Rather than uncertainty regarding whether or when the service might propose to list a given species, stakeholders now know, in some cases years in advance.”

    But lawmakers ended up asking Ashe few questions about “sue and settle.” Instead, he and other witnesses were asked for opinions on everything from data availability to whether ESA needs to be updated.

    Rob Roy Ramey, a scientist from Colorado who was also a witness at the hearing, argued that FWS doesn’t always use hard data to make a listing decision, instead turning to experts and articles. If the agency uses a scientific article as support for a listing, the data behind that listing are sometimes not publicly available.

    “The problem is, it needs to be available, and it needs to be available at the time of the decision,” Ramey said.

    But Ashe compared his agency’s actions to those of a doctor who uses his best judgment in an emergency.

    “With endangered species, we’re often working with an emergency situation, and we have to work with the information we have available,” he said. “Sometimes that is expert opinion.”

    The hearing came a day after committee Chairman Doc Hastings (R-Wash.) released a management alert from the Interior Department’s inspector general. The alert harshly criticized Ashe for not disciplining two supervisors who retaliated against whistle-blowers who exposed scientific misconduct (E&E Daily, Aug. 1).

    But the issue was only brought up briefly at the hearing, with Hastings telling Ashe that he expected details “as quickly as possible” on the allegations.

    • Here’s the part that struck me:

      “In 2011, FWS entered into settlements with WildEarth Guardians and the Center for Biological Diversity, agreeing to issue final listing determinations for about 250 species over six years.

      “Since then, FWS has seen an almost 96 percent reduction in lawsuits filed for missed deadlines on petitions, Ashe said.”

      I agree with Ashe that this doesn’t necessarily sound like “sue and settle.” On the surface it sounds a lot more like extortion or bribery, with taxpayer dollars held hostage. Just one more reason we need full transparency with these decisions. Maybe Ashe is right, but on the surface it sure doesn’t seem right.


Leave a Comment