Environmental groups receive $1.25 million in grazing case

What I think is interesting about this is the quote from the judge where he seems to depart from decisions in Legal World (his purview) to statements about Physical World. Plus it seems like he is giving them bucks based on how much good they do in Physical World. All very confusing (what is real in Physical World and why they should get the money), and unmeasured in a direct logic path, if this quote is correct: their effects in Physical World are the “most important” reasons to give them (more) money. See the last sentence in the excerpt.

Here’s the link and here’s the excerpt (my italics). Perhaps the judge was quoted incorrectly?

Last year, a federal judge ended a court battle between environmentalists, ranchers and the U.S. Forest Service over the effect grazing had on threatened steelhead habitat.
During the nearly 10 years of litigation, U.S. District Judge Ancer Haggerty issued several injunctions that limited grazing at the request of the Oregon Natural Desert Association.
Grazing in the national forest is now governed by a new “biological opinion” developed by the government, which ended curtailments imposed by the court.
Haggerty ultimately concluded that ONDA won several of its legal claims against the Forest Service, which entitled the group to attorney fees and costs from the federal government.
The environmental group originally asked for nearly $1.4 million in compensation, which the government called “prodigious” and “excessive” because ONDA’s legal victories were modest.
The government also claimed the group inflated the requested amount by billing at premium “expert” rates for work that didn’t require extensive environmental experience.
However, Haggerty slapped down the government’s arguments, finding that the “fees requested are great, in large part because this case involved a large administrative record, complex scientific materials and a lengthy duration of time.”
“However, there is no doubt that the hours expended were increased dramatically by repeated delays caused by federal defendants and government counsel,” the judge said in a ruling.
If the defendant were a private party, Haggerty said he would have granted ONDA its full request. Because the money came from taxpayers, though, it deserved more scrutiny, he said.
While the government argued that the amount of compensation should be cut by up to 50 percent because ONDA didn’t prevail on all of its claims, Haggerty said the “federal defendants underrepresent the success plaintiffs achieved.”
The environmentalists “prevailed, or partially prevailed, on eight out of twelve claims eventually litigated, obtained substantial injunctive relief during the years prior to final judgment, and most importantly, were able to reverse the degradation of habitat in the MNF and achieve substantial protections for threatened steelhead,” the judge said.

20 thoughts on “Environmental groups receive $1.25 million in grazing case”

  1. ‘All very confusing (what is real in Physical World and why they should get the money), and unmeasured in a direct logic path, …)’

    Thank you for articulating the central component of what you are confused about. It has everything to do with your chosen “logic path” based upon self imposed, illogical constructs.

    But again, this is best revealed as, “money does not equal life.”

    The role and value of ONDA (that is, the greater “public” value + costs of the role) is not compatible with your notion “of what is real in Physical World.” This is using a false reductionist “Physical World” equation — that being, “money equals life.”

    It does not. As a consequence, your understanding won’t be possible.

    The fact is, selfless citizen oversight of captured public agencies has become an essential function while Amerika is in the ever tightening grip of corporatism. Such oversight represents the last vestiges of participatory democracy in the waning days of our grand illusion of being a constitutional republic. You and the ideology you identify with would be content in eviscerating these last remaining means by which this act of participatory democracy occurs. The reasoning reduced to an if-then logic path: (if) “don’t understand,” (then) “ask what good (value, or reason to exist) has it?” (Then dedicate one’s energy to a blog advancing this illogical construct to eliminate the conundrum of such truth in conflict with false logic.)

    The fact is, this act requires direct (selfless, and for the greater good of life) public participation, and (regrettably), monetary resources to adequately defend that life.

    Jurisprudence in this case, has simply recognized this.

    This is not rocket science Sharon.

    Reply
    • David, thanks for your question. Perhaps my thinking was not clear. I don’t believe money equals life. I just don’t think that judges should be awarding taxpayer bucks (that I contribute to) based on their estimates of how real the impacts of the lawsuit in the environment. With all due respect, I don’t think judges are in a position to judge that.

      my understanding was that fees were awarded on the basis of claims shown to be valid in the opinion of the judge. So if they prevailed (or “partially prevailed? did that mean the government also “partially prevailed”) on 8/12 of claims, they should get 8/12 (- the government share of partially prevailing) of whatever they might have gotten if they’d prevailed on everything, I guess.

      That seems to be within the purview of the judge’s responsibility (I guess, hopefully legal people on the blog can help)

      What concerns me is the judge stating that “more important” than the legal claims (his purview) are the ultimate physical outcomes (which I don’t believe to be). That’s why I would like to see his logic path. Something like, I think this lawsuit helped removed .03 cubic feet of sedimentation on 6 miles of the Malheur River. Therefore I award the plaintiffs .03 x 6 x $1,000 extra..

      One of the reasons I don’t think courtrooms are good places to resolve environmental disputes is that it is not OK for a line officer to show their logic path to why they got their decision and it can’t be arbitrary or capricious.

      But judges don’t have to show their work and can seem arbitrary. In fact, they sometimes are highly arbitrary, as can be seen by the success of appeals to a higher court.

      I hope this is clearer. But maybe the judge was misquoted, or I am missing some language difference between courtrooms and general English usage.

      Reply
  2. I haven’t read this case yet, but “achieve substantial protections for threatened steelhead” (judge’s words) is very much a “legal world” outcome. It means the FS is being told to follow the statutory rules (e.g., ESA, NEPA, etc..) that the judge was convinced (by plaintiffs) that it hadn’t been following. That’s “legal” all the way. I can see what you’re saying with regard to “reverse the degradation of habitat in the MNF”, however I think the judge was simply saying that when FS didn’t follow the rules, it was leading (or could lead) to habitat degradation, and he agreed with plaintiffs that such a consequence was occurring or could occur. But it doesn’t mean that he assigned fees and costs based on some “unit” of habitat degradation. Plaintiff’s attorneys are required to submit a very specific itemization of the hours spent on the case, plus plaintiffs may have incurred expert witness costs, and there were probably some court costs. Those are added up and submitted to the Court, and the judge decides what he/she thinks is reasonable. The government gets to make a counter-argument (for a lesser amount). Here’s a perspective on the process from DOJ: http://www.justice.gov/olc/opn5.htm Although the process is somewhat cut-and-dried, it’s possible that the judge may lean more towards plaintiffs’ numbers if she/he feels that agency behavior was especially egregious. That may be what happened here. -Guy

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  3. EAJA: “An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” EAJA disputes in court are often about the meaning of ‘prevailing’ in a particular case.

    The judge’s language you are questioning appears to be addressing the argument made by the government that plaintiff’s legal victories were ‘modest’ (the reporter’s term, but we’ll assume it accurately portrays the government position). I would interpret the judge to be responding in substantive (physical world?) terms as well as legal terms. Plaintiffs got the substantive outcomes they wanted, which is one meaning of ‘prevailing.’

    Judges do have to determine disputed facts. Without reading the case, I would assume that degradation of habitat had been proven or admitted. I do see where the word ‘substantial’ might get you thinking about about a mathematical formula tied to effects, but I think the point is simply that the changes on the ground indicate that plaintiffs prevailed.

    The bigger error by the judge may have been in the other direction. I don’t think there is any provision in EAJA that allows payments to be reduced because ‘the money came from taxpayers.’

    Reply
    • Thanks, Jon. It will be interesting to see if the judge’s decision is appealed on that basis.
      It’s hard to tell from all the court documents 1)what actual changes on the ground there are resulting from this case, and 2) what the proof is that the changes will actually help the fish. Maybe that’s just because there are so many court documents, and 1) and 2) are not highlighted in a specific place.

      Reply
  4. Sharon said “I don’t think judges are in a position to judge that.” What if the parties submitted evidence regarding the on-the-ground effect of the case? Would that change your mind? Do you know there was no evidence presented?

    I think that is precisely the role of judges – to judge.

    I don’t think bloggers are in a position to judge things … about which they know not.

    Reply
    • It is the role of judges to judge whether people were following the law, that is taking steps in compliance with the law and regulations.

      It is up to others to judge and observe on the ground outcomes. For example, did the FS consult with FWS (legal)? Are there more or fewer steelhead than when the suit was filed (you need a measurement then and now, not a judgement.)

      I may not be in a position to weigh in on “the law,” but I and others can certainly weigh in on measurements of fish numbers.

      Reply
  5. ‘I may not be in a position to weigh in on “the law,” but I and others can certainly weigh in on measurements of fish numbers.’

    Go for it Sharon.

    However, this is not about “fish numbers” this is about habitat and, “the effect grazing had on threatened steelhead habitat” which your former employer as a captured agency disregarded as significant. Only under sufficient judicial pressure, did that agency subsequently deem, through ‘a new “biological opinion,”’ that perhaps it was significant after all.

    This is the role of the judiciary, so fundamental to the concept of the separation of powers. And it is such fundamental concepts of democracy which seems to upset you the most.

    Your primary concern is clear here: “Why should they get the money?”

    Answer: The Plaintiffs “were able to reverse the degradation of habitat in the MNF and achieve substantial protections for threatened steelhead,” the judge said.

    This is about reckless agency predilections to degrade habitat of threatened steelhead.
    It is not about money, it is not even about a fish count (which obviously include threats to returning fish numbers beyond willful USFS degradation of habitat) Sharon.

    Rather than money, this is about Life.

    Reply
  6. Thanks for helping me clarify my thinking..

    Every creature has a habitat where it lives and possible other places it could live. Some creatures are fished and hunted in their habitat. Some have competitors (barred owls); some have diseases (white pine blister rust).

    Some people seem to have ideological preferences against any use of grasses and forest products from public lands (and some services). They argue in court that this removal decreases habitat.

    But it seems like you could argue that anything decreases habitat…say the existence of ski areas, for example, or roads for oil and gas leases. Or roads that people use to recreate cause sedimentation.

    But if we don’t consider the whole situation, we can “protect habitat” and judges can pat people on the back and reward them financially but there won’t be more of the species at the end of the day (e.g. owl). Is that really a win for the species, or a hypothetical win? The judge asserts that whatever it is are “substantial protections.”are these in fact protections that are meaningful in the real world?

    So if someone litigated to get all recreation roads removed from the watersheds with steelhead, they would get even more money in their EAJA fees?

    Just asking the question..

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  7. “are these in fact protections that are meaningful in the real world?”

    Bingo.

    Yes, now we are getting to the core issue, and it boils down to a stark contrast in our worldview. Why then, isn’t this court case and its plaintiffs also acknowledged as being very much in the “real world,” and their sought after “protections” questioned as “meaningful?”

    I would posit this is a profound admission of a personal bias in line with the reigning institutional bias of your former employer. That bias exempts responsibility of the USFS from the historical and ongoing ecological decline on our NFS. The USFS admission of systematic mismanagement and their current promise (finally?) of “restoration and stewardship” reflects this legacy of mismanagement. This is “real world” but somehow, isn’t central to this case?

    It is very much at the center, because this case demonstrates the agency campaign promise of “restoration (of damaged landscapes) and stewardship” is little more than a greenwashing PR campaign mirroring other corporate tactics to maintain business as usual.

    This is also the “real world”, yet you choose to ignore its implications. In your worldview, the issue boils down to plaintiffs characterized as motivated by “ideological preferences against any use of grasses.”

    This belies the facts of the case. The issues are about an agency willfully allowing stream bank erosion, siltation, and nitrogen water pollution (etc.) on public lands with threatened species at risk. The facts of the case are public plaintiffs forced the agency to do its job and obviously, grazing continues apace.

    Citizen oversight and legal recourse is necessary because the agency you used to work for has long since been captured, and therefore cannot be depended upon in many cases, to “Care for the Land.”

    As to your question,”So if someone litigated to get all recreation roads removed from the watersheds with steelhead, they would get even more money in their EAJA fees?”

    This question is hyperbolic to the extreme, and facilitates a better understanding of your “real world” worldview.

    Reply
  8. I just took the time to dig up the attorney fee order from the court’s file. Its docket stamp is Case 3:03-cv-00381-HA Document 563 Filed 07/02/13 if that’s of use to you. I recommend it to any of you who want to see how our public agencies’ attorneys should NOT behave when defending environmental litigation.

    If you don’t have access to court dockets (I’m not sure if/how non-lawyers can get access), send me an email and I’ll be glad to send the order to you (and the entire docket sheet if you want that). toby@louploup.net

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  9. David,

    I gotta jump in here. The “captured agency” rhetoric is tired and gains no traction. What is your profound personal bias? You have some very good points, but you are also way off base, or I’m once again totally missing something (I’d suggest you are).

    I’d give you the fact that citizen oversight is necessary. Why? Because most/many projects the FS proposes these days aren’t a product of some sinister “captured agency” telling its line officers what to do, rather it’s quite the opposite…most projects that I know about or have been involved with have come from the ground up. Field folks seeing an opportunity, proposing a project, counseling the LO and going from there…sure there is the “restoration” schtick, but you can bet mosty folks see right thru that. From my perspective, it’s the knowledgeable folks that folks on the ground that steer things…not the other way around (although we ARE still waiting for our “kickbacks”).

    So yes, oversight is good,and exercised routinely where I’m from. In fact, I/we welcome (begrudgingly) the input from our critics and “watchdog” groups…they keep us on the straight and narrow, because honestly, we DON’T have it all figured out. But if you HONESTLY think that my colleagues and I (locally and across the country) are out to knowingly trash resources (willfully allow), or do so to please the “big greens”, well….hmmmm…we’ve got nothing to discuss, debate or talk about. You’re wrong. Simple as that. No different than me accusing an AK fisherman overfishing a resource…I like fishing, but what do I really know?

    As folks like Matt have pointed out here on many, many occasions, most Agency decisions (in our area) are actually NOT litigated. In fact, most go thru to implementation without much ado. WHY? Because they’re pretty benign and aren’t contributing to “continued ecological decline”. There’s not a chance that the fraction of a percent of active management acres can make that big of a difference.

    Judges decisions are a bad forum for deciding public land management issues. If it gets to that point, no one has won or done a good job regardless of the decision. It’s silly to think an agency would take a case to court and defend their “experts” if they thought environmental degradation was a result…maybe I’m all wet though – maybe the “experts” simply didn’t have it all figured out, despite good intentions. Regardless, I think it’s important to keep the above discussions in context.

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  10. JZ,
    Thanks for the invitation.

    It is good to hear examples of ground-up decision making taking place within our NFS. I suspect though that those decisions fall within a carefully circumscribed and rather confined range of permissible actions defined by line officers. Further up the food chain, those line officers are confined to certain budget priorities determined by their superiors. And finally, at the top of the heap are the Wall Street financiers of the Obama Campaign’s administration with appointees such as Chief Tidwell, along with key legislators also elected by the graces of corporate campaign contributions under the outrageous ploy of “personhood” enjoying anonymous and unlimited political campaign contributions in the name of “free speech.”

    NOW we’re getting to the captured agency aspects in which, for instance, there’s plenty of money to build roads but very little money within District-level budgets to adequately maintain existing roads. The national backlog of road maintenance alone (measured in BILLION$) which the USFS freely admits to, and the consequential phenomenal transcontinental habitat degradation it represents is only one example (but sufficient by itself) for the purposes of demonstrating the very real effects of the captured state of the agency.

    Given these well-known realities, it is still disappointing, and particularly ironic that you regard, “the “captured agency” rhetoric (being) tired and gains no traction.” (Traction is difficult on washed-out roads though, isn’t it?)

    I most certainly exercise a profound personal bias because I regard it as a necessary responsibility, but more importantly, I am not obligated to suspend that bias. Employees of the USFS are obligated while at work, in my view, to suspend theirs. The difference being my bias is in the interest of maintaining governmental fidelity to the doctrine of public trust in respect to the management of public lands and the commons in general. That they are not held personally accountable when they fail the public trust allows this predicament to be perpetual.

    Agency employees, as taxpayer-paid public servants (how quaint a term, isn’t it?) are ostensibly bound to the credo of “Caring for the Land and Serving People.” The question then, is which people? The oft heard refrain from the agency personnel is that they’re satisfied when they get attacked from both ends of the resource user spectrum.

    However, that’s just the “serving people” part of the credo. Caring for the land, on the other hand, has routinely taken a backseat as demonstrated in this example of agency-enabled ranchers profiting off the commons while agency-enabled habitat destruction adds another straw to the backs of beleaguered species.

    The “irreversible and irretrievable consequences” the agency perennially admits to in EIS’ is accomplished in this case, in the service of ranchers who enjoy agency-serviced, extravagant benefits at great public cost. These irretrievable consequences of habitat destruction of threatened species in the service of providing extravagant benefits is clearly in violation of the public trust and public expectation that the agency will indeed, Care for the Land. This makes Sharon’s peculiar concerns about EAJA compensation to successful plaintiffs all the more outrageous — as if that were more important than the example of willful agency violation of the public trust.

    BTW, I do not suspend this personal bias in my occupation as a commercial crab, halibut and sea cucumber dive fisherman of Southeast Alaska. In fact, I am a beneficiary of applying that bias when attempting to force the USFS to actually Care for the Land. Unfortunately I am, as well as fellow crabbers are, currently being victimized by this same agency, as it has been permitted by the State of Alaska to displace crab fisherman, and to degrade a body of water set aside by the state to be managed for the priorities of crab habitat and commercial harvest. This is justified in order to service the whims of the successful bidder, a timber operator who prefers logs from the Tonka Timber Sale be towed, and stored in waters of a bay wholly inappropriate for safe log storage, rather than directly barged to the mill site.

    Why log tows, instead of log barges, the use of which would preclude habitat degradation and commercial fishermen displacement? Because in water log rafts eliminates the extra step of unloading barges back to log rafts which is how the timber operator loads freighters for raw export of Tongass logs directly to the Orient — bypassing local value added year round employment.

    It is not at a stretch to compare timber sale bidders and ranchers being the people who routinely get “served,” why other commercial and public users of the NFS get the shaft by this agency.

    Lastly, as Matt has correctly noted, most timber sales are not challenged in court. Why? Because, often, (such as the Tonka Timber Sale) habitat destruction in the face of demonstrated historical destruction which has resulted in the crash of Sitka blacktail deer populations, is quite legal. As a result, rural residents in proximity to the Tonka Timber Sale are restricted to a single buck in a season which lasts just 14 days. (So much for “the Last Frontier” myth, huh?)

    For all the attacks launched from this blog, mounted on NEPA, NFMA and ESA, the fact is, people like Sharon are quite successful in their pursuit and maintenance of business as usual “real world” habitat destruction. After all, by all accounts we are not erring on the side of conservation on the NFS nor the planet in general — yet Sharon and others would clinch the fate of the planet with the elimination or evisceration of these benchmark environmental laws.

    Whew.

    That’s the profound professional/personal bias permitted within this captured agency I find tragically contemptible. I know for a fact there are well-meaning people in the ranks of the agency — many are my good friends who have much to share and contribute. In the end though, their fates are bound by a dominant culture. If there is no other purpose for NCFP, it surely serves as an excellent, if not stark example of that dominant agency culture driving, perpetuating and rationalizing its own mismanagement.

    (ps. gsacc.net provides the details of the above mentioned Tonka Timber sale that the USFS would rather the public not be exposed to.)

    Reply
      • Where’s “plenty of money to build roads” coming from?

        Sharon, as always, it comes from taxpayers. Are you suggesting the regionwide USFS has no road building $$ in its budget?

        Please reference “Tongass Economics 101” authored by retired USFS economist Joseph Mehrkens on gsacc.net for the graph documenting road expenditures vs. timber harvest on the Tongass and here is the accompanying narrative (also note the absurdities “stewardship” funding rationale):

        While the above timber and road losses are staggering in themselves, they are now a prerequisite for most of the stewardship contracting expenditures. Why? ⎯ because recent policy changes allocate old-growth timber revenues as a primary funding source for stewardship projects. This arbitrary policy results in millions of dollars spent in the old-growth timber program before public dollars are available for stewardship contacting.

        Regardless, that there remains a national backlog of deferred road maintenance on the entire NFS which is causing ongoing habitat degradation is well-established.

        Reply
        • I don’t know about Alaska…

          I am just not aware of anyone building any roads except temp roads for fuel treatments and timber harvesting to get material out. Is that what you’re talking about?

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          • I am talking about an agency credo which claims in part “Caring for the Land,” but due to its captured state, has inadequate funding on a national scale to accomplish even the basic necessary maintenance of those roads resulting in untold environmental harms.

            I am talking about the latest ROD on the Big Thorne Timber Sale Project (BTP) signed on the Tongass:
            “Tongass National Forest (TNF) Supervisor Forrest Cole signed the BTP ROD on June 28, 2013. Cole’s decision authorized the removal of 148.9 million board feet (MMBF) of timber from 6,186 old growth acres and 2,299 acres of recovering forests. ROD at 1. The ROD also authorizes the construction 46.1 miles of new road and reconstructs 36.6 miles of existing road.” (excerpted from the appeal filed today)

            Reply

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