Who You Gonna Sue?


Today the timber industry sued the closed-down federal government because — drumroll, please — it closed down.

The outcome of the lawsuit isn’t in doubt. What’s more fun is to speculate on whether it takes the Oregon judge longer than the 40 minutes it took the Chief Judge in Colorado to throw her case out. Corollary question: Will the federal courts shut-down before the case is decided?

27 thoughts on “Who You Gonna Sue?”

  1. Corollary question: Will the federal courts shut-down before the case is decided?

    oh yeah, most likely, I got this email two weeks ago:


    US District Court – District of Idaho
    Sent: Mon 9/30/2013 4:32 PM

    Absent an appropriation from Congress by October 1, the federal government will shut down due to a lack of funding. However, the Judiciary has available funding to support the first 10 business days of fiscal year 2014.
    In the event of a lapse in appropriation, while most federal entities will have to implement shutdown plans immediately, the work of the Judiciary will proceed under normal operations for the first 10 business days of the fiscal year, beginning October 1. Of course, the effect on a shutdown on other governmental agencies and participants in court cases and hearings may impact how the Court’s operations and proceedings will be handled. If it appears that the lack of funding will be extended beyond 10 business days, the Court will determine to what degree, if any, changes in court calendars or other functions are required. In such an event, additional notice will be provided.”

  2. Andy: That is a great illustration for the topic! I’m assuming the “L” is for Lawyer?
    (No offense, Guy, you’ve heard my position on this before. Nothing against the legal profession, just nonsense like this and the serial litigation that consistently derails active management of our nation’s forest resources. And the “timber industry” does have a constant losing record using the courts to get their own way that goes back 20+ years. At least the lawyers, international timber companies and Canadians have made a good, stable income off the conflict during that time.)

  3. FWIW, I did call FS WO Public Affairs to find out why some things are closed and others aren’t and to see if there are any general rules…
    like special use permits continue,
    mineral leases continue,
    timber sales not,
    so that a person could try to figure out the general lay of the land. But of course the phone message said they were furloughed, so I can’t find out.ya gotta love it.. I will report back if I find anything out.

  4. Corollary question: How can anyone in the environmental movement claim that ‘collaborating’ with the timber industry for increased logging, through mandates or otherwise, is a solid strategy?

    • Matt: I’ve argued here before that the (“big”) timber industries are on the same side of the fence as the enviros, and seem to view them as “useful idiots” — it is to their distinct advantage to keep federal timber off the market and the spotted owl has made something possible they have been trying to achieve since the 1920s. It is the affected public — including the mom-n-pop logging and sawmilling businesses and the small towns and rural counties that depend on them that have been shafted. They’re the ones missing from the table and from all of the so-called “collaborations” (another one of the few points you and I seem to agree upon).

      • Bob

        Re: “it is to their distinct advantage to keep federal timber off the market and the spotted owl has made something possible”
        What you say is fact based on my exposure – it has decreased supply and increased prices for their wood without any risk of price fixing legal implications to the timberland enterprises since the environmentalists are doing it for them.

        • It took me a while to figure it out, too, Gil. That’s why I asked how much of the “coals to Newcastle” wood we were buying from Canada was coming via Weyerhaeuser. No answers so far, but it is an interesting question.

          It’s always been surprising how a bunch of kids dressed like owls and dancing and chanting to drums could have so much power over the “timber industry” — and why the “industry” kept paying lawyers to go to court year after year after year and keep losing and losing and still keep doing it. And why they didn’t even try alternative strategies over all that time until most of their competition was dead and buried. The money angle was the only thing that made sense — wearing a black hat was/is enormously profitable, and the kids were gratified by constantly “winning” and getting their names in the paper.

          Anyway, that’s the way it seems to look on paper:

    • Matt,
      Come on. The reason for collaboration is because environmentalists are burning through their social license with every acre of black forest and wasted wood. Certainly, the forest itself is neutral and nonjudgemental on the outcome pathways or whatever the terminology doo joooor is….but people are not. People own these forests, and those most familiar with them are, with certain exceptions based on either economic or naturoanthro ideological proclivities, flipping ticked off. The social license that supports the laws governing the forest is piling up lots of points. People own these forests and those driving the bus need to keep the bus owners happy.
      MWA and all your other bete noires understand their social license is near revocation, even if NEC or CBD or WIGS or AWR care not at all. They are trying to keep the laws intact and retain policy control before critical political mass is reached. With the national debt a bottomless pit, an epic crater, the larger American public (that is not hoovering Wal Marts when their EBT’s malf) is going to demand value in return for expenditure. That’s coming, whether you like it or not. I just hope I live to see it, and maybe even see the results on the landscape.

    • Matthew

      You don’t seem to have paid any attention to the arguments that many of us have made here.
      Maybe some of those groups actually have open minds to the possibility that:
      1) The present system isn’t working too well.
      2) Maybe they value healthy forest ecosystems more than having to prove that they are right.
      3) They might be willing to adjust their agenda when there is plenty of science to support that some increased level of logging might actually improve things.

      • Hello Gil Dehuff: My experience with “collaboration” is based on how it has played out during the past ten years in Montana, starting with an award-winning “Breaking New Ground” effort that was established on the Lolo NF and lead by Mike Wood, who has been commenting on this blog recently.

        As such, I really fail to see how you (sitting in Mississippi or somewhere in the deep south) can say much about a very specific set of circumstances (some very specifically involving Montana politics) I, and others, have dealt with nearly every day for the past decade in regards to how much of the “collaboration” is playing out in Montana. Suffice to say, many people in-the-know view some of the very specific examples of “collaboration” coming from Montana as a case study of what not to do if you want a truly open, inclusive and transparent collaborative process. Thanks.

        • We do need to know all sides of the story, though, Matt. Are people being excluded, or, are they choosing not to participate, because their message is being considered, and then rejected? I’m not saying that is happening where Matt is but, I would bet it is happening, somewhere in collaborative processes. I do support “a truly open, inclusive and transparent collaborative process.” All points of view need to be welcomed but, not every entity gets to “vote”, if that is how decisions are made. No one should be allowed to “game the system”, IMHO. Collaboration needs to lead to consensus and compromise.

        • Matthew

          At the time of my reply your only comment in this thread was “How can anyone in the environmental movement claim that ‘collaborating’ with the timber industry for increased logging, through mandates or otherwise, is a solid strategy?” (emphasis added). So please tell me how you can find fault with my conclusion? You slipped and revealed your intransigence and now you want to cover it up. Not so fast – you are on the record.

          If you don’t mean something literally, then don’t say it. Since your only comment in this thread at that time was very explicit, I saw no need to call my New Orleans Voodoo doctor to read between the lines for me. Your original statement fits right in with what I have inferred from a great many of your past comments and your clumsy defense did nothing to make me trust your followup interpretation.

          On the positive side, I really appreciate that you tried to save a poor Mississippi boy from the intellectual difficulties of dealing with complex subjects. BTW, your not so subtle hint to bug off/out failed to register, please forgive me for being so dense. I know that it is a terrible burden for you to have to bear.

          Deepest Regards,

          • Wow, Gil. All I’m trying to do is share a Montana specific experience that myself and others have had with collaboration as it has played out in some specific spots in Montana. Dissect my fairly brief couple of paragraphs and my one sentence, off-the-cuff corollary question all you want and/or make whatever assumptions or allegations you want. I’m not going to take your bait here Gil. Thanks.

            • Matthew

              You made a broad statement that was not stated to be specific to Montana nor was any context to that effect provided. – Yet, you have the gall to call me out for being from Mississippi and not able to understand a Montana specific situation that you never mentioned until after I made my comment.

              You deflected and escalated rather than recognizing and admitting the problems inherent in your original comment.

  5. Hey it is big deal for us to be shut down on our timber sale. This was the week we were suppose to be flying wood. We now don’t know if the Helicopter will now make in time, because they have now gone elsewhere, before all timber we have spent weeks cutting will be under snow, not to mention the road. The logger has another job he’s wants to move to. Do we leave equipment, that could get snowed in, incase the weather stays good and we can operate?
    Will the mill now have to source wood elsewhere, can it? It’s not as easy to stop and go as you would think.
    Might as well have a laugh about it, its pretty crazy.

  6. This topic has drifted a lot, but back to Andy’s original post: Andy, I’m curious why you believe the outcome of this case is a foregone conclusion? There are some pretty big differences between this class action suit and the university bike racing team’s suit. The bike team had a special recreational permit with several exit provisions, including public safety (easy argument for the govt). The timber company suit is based on a previously awarded contract, and arguably doesn’t involve public safety or require direct govt supervision (at least they argue that). Part of a judge’s decision for a requested injunction usually involves a balancing of interests, and it seems here that the plaintiffs’ interests are pretty strong (major financial hardship). Their argument for class action seems pretty solid at first glance. I’ve only glanced at the complaint, not read anything else, but it seems less easy for the court to shrug off than the other case. Or, if they lose on the injunction, they might consider coming back on a contract theory (govt will argue impossibility, but who knows… ) Contractually, the companies are getting screwed (legal term).

    • We’ll know soon enough the outcome as the injunction hearing is scheduled for 10/17. Couple of reasons why I think it’s not even a close call. First, the Federal Court of Claims is the exclusive forum for government contract-related disputes. So, to the extent this is a contract issue, the industry sued in the wrong court. Industry plaintiffs have a fig leaf of an argument as to why this isn’t really a contract-related dispute, but everyone knows it is, as your comment well illustrates. Second, industry’s case says “let us log public lands without any government supervision.” Not only is that silly talk, the sale contracts themselves impose supervision. And then there’s the fact that the judge is about to be furloughing his own law clerks and secretaries without pay. Industry is saying “Your Honor, we’re more important than your employees because we have a contract.” But federal employees have contracts, too — employment contracts. Those contracts grant rights and impose obligations on both parties to them. Yet, the government has ripped up these contracts for hundreds of thousands of workers.

      • yes, I like your logic. Whereas I noted this could be treated as a contract issue, you’re saying that it should be considered as such (and litigated elsewhere). A federal judge would likely agree with that perspective, especially a judge that’s in a bad mood anyway due to the shutdown.


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