USFS supports bill for a pilot program using “alternative dispute resolution”

Excerpt from an E&E Daily article, “BLM, Forest Service officials support contentious bills.

Glenn Casamassa, the Forest Service’s associate deputy chief, indicated the service also supports the goal behind S. 2160, sponsored by Sen. Steve Daines (R-Mont.).

Daines’ bill would require the Forest Service chief to establish a pilot program using “alternative dispute resolution,” most likely arbitration, in lieu of legal action “for certain projects” designed to reduce wildfire risks in Montana and parts of Idaho.

Only projects dealing with reducing wildfire risks, and developed “through a collaborative” process with various stakeholders, would be eligible for arbitration, he said.

“Combating chronic litigation doesn’t erode public input, it safeguards it,” he said. “It does so by ensuring that consensus-driven decisions of the majority are not obstructed by isolated dissenters, in most cases extreme environmental groups.”

Casamassa told Daines that litigation has harmed important forest management projects and is a concern for the Agriculture Department and Forest Service.

“USDA supports the idea of arbitration as a tool to help streamline project decisions while maintaining public engagement and input,” he said.

12 thoughts on “USFS supports bill for a pilot program using “alternative dispute resolution””

  1. This is a silly idea. In 49 nations, including the U.S., arbitration is limited to resolving contractual disputes between private parties. Forest Service land management decisions are made by a public agency, not a private party. There are also no contractual provisions for the arbiter to resolve.

    A small handful of politicians want to put the Forest Service above the law. Not because they like the Forest Service, but because they loathe the law. And they hate the independent judiciary that enforces the law. Is it any wonder that the current White House administration endorses this looney idea?

    • Andy, I think it’s confusing because people do arbitration because it’s in a contract. But there are plenty of examples in the US and they deal with compacts, treaties, federal and state laws and so on. E.g.,

      Having a fuel treatment project can be framed as a “natural resource dispute”, if so then dispute resolution techniques like the various forms of ADR (I prefer mediation but..). It seems to me that this is a pilot and the FS could benefit from more piloting new approaches. I think we used to call it “adaptive management.” 😉

    • Andy, arbitration is often used in resolving contract disputes between labor unions and schools, which aren’t private parties.

  2. Maybe a public decision, made by a public agency, should have a conflict (which is presented by a private party) addressed and resolved in a public forum. That way, all perspectives can be heard concurrently with the conflict for all to hear. Still, it seems some person(s) needs to reach a decision that resolves the conflict.

  3. “ensuring that consensus-driven decisions of the majority are not obstructed by isolated dissenters, in most cases extreme environmental groups.”

    IMO, that’s why the the bill is not “a silly idea” but rather a reasonable approach to solving a perennial problem. Seems that if S2160 becomes law, the F.S. would not be “above the law” in following its direction.

  4. It’s mostly a non-issue for green sale programs in the Sierra Nevada. While the Sierra Club (and others) may not like the cutting of green trees, they mostly don’t litigate thinning projects. It’s OK to have site-specific ‘objections’ and concerns, and working them out (one way or another), is better than going to court.

    Some politicians like to rail against concepts, instead of having rational and specific concerns about issues. I don’t blame the Endangered Species Act for the management plans assigned to species. The ESA does not need to be abolished, or even amended, IMHO. I do think that management plans should not be rigid, though. Let the experts decide, and re-evaluate.

    Salvage sales have been a hot spot for litigation, by the ‘usual suspects’. It sure seems like the USFS has been closing loopholes, and winning in court. However, volumes and acreages have dropped dramatically. Additionally, acreages replanted are also down. It makes little sense to replant trees in a thick snag patch, or in brushy areas.

  5. I see that this is a pilot program (based on the write-up) for Montana and parts of Idaho. It seems to based on our experience here, that that’s the home of a few particularly litigious ideologues. I would prefer a mediation open to the public in which the discussion is more “what can we do to make the project acceptable to you?” and the potential litigator has to say what, and why.

    I don’t think it’s justice or good policy for the plaintiff and DOJ to meet behind closed doors to settle these conflicts. And judges can be .. dare I say, arbitrary and capricious?

    Then the mediator or arbitrator would examine the claims of each party and come to some documented conclusion. Seems like there would be more useful information presented and potentially the public could be wrapped into the claims and counterclaims. Really to me, this is more about doing the deal in public rather than in private.

    • My thoughts exactly, Sharon.

      Though, I fear we could end up with a “land management plan-type of debate” for every project, where the debate attempts to reconcile conflicting values of land use. The question debated would be, “should the FS authorize this action?”

      If that became true, what function would land management plans have, other than comply with NFMA?

  6. The devil is in the details as far as arbitration. First, who’s the arbiter? Judge Malloy? Well heck, let’s arbitrate! Scott Pruitt? Well, maybe not so much. Second, who gets to choose? Is there is a choice? Third, are you seeking to marginalize a class? Because yes, an enviro suit resembles a class action in many ways. The so called serial litigators are not representative of themselves alone. They represent a class, or they wouldn’t get through the standing door. Finally, expertise. There are a million contract attorneys out there and contract law is pretty much a black letter law affair. Do we have some black letter science that the arbiter can turn to in order to resolve questions of fact? Hmmm. I’m sure some on here think we do.

    Yeah, I call bs unless the plaintiff gets to choose the arbiter.

    • The draft bill says:

      (1) APPOINTMENT.—The Secretary shall develop and publish a list of not fewer than 15 individuals eligible to serve as arbitrators for the pilot program.

      (2) QUALIFICATIONS.—To be eligible to serve as an arbitrator under this subsection, an individual shall be—

      (A) certified by—

      (i) the American Arbitration Association; or

      (ii) a State arbitration program; or

      (B) a fully retired Federal or State judge.

      • Oh.
        Good lord.
        This is pretty strong evidence that our congress critters have zero appreciation for the complexity of what they’re trying to legislate.
        Thanks Steve.


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