Matthew posted the WEG press release here..with links to other posts on the case.
Frankly, I have never really understood ESA litigation. Maybe Jon and others can help me understand via this case.
1. From what I’ve read, this case is about the FS (and FWS?) not monitoring/improving the status of the MSO. But some forests are exempt, because they have a 2012 biological opinion, and it will supposedly take a year for the other forests to get a biological opinion. But if those other forests have a biological opinion, and it says “don’t do these things because of the MSO” then couldn’t another solution be to adopt those restrictions until the new BO is completed? Could that have been the judge’s decision? Would the plaintiff then have to agree? If some forests are exempt from the order due to their BO’s, then is it really about monitoring, or really about having a recent BO? To get back to Jon’s point, does it make better sense to have something like the Southern Rockies Lynx Amendment where a bunch of forest plans are amended at once?
It’s also interesting from the political science point of view. Thanks to the NAFSR twitter feed for this link to a story in the Las Cruces Sun News.
U.S. Sens. Tom Udall and Martin Heinrich, and U.S. Reps. Ben Ray Lujan, Deb Haaland and Xochitl Torres Small — all Democrats — signed the letter, asking Christiansen to “resolve a variety of issues, including, but not limited to, traditional firewood gathering, tribal cultural activities, and forest restoration and fire mitigation projects.”
The affected people and their elected officials can only ask the Forest Service to negotiate. If I remember correctly, it was also an ESA case in Region 3 about which Chief Jack Ward Thomas said:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”
So we don’t know if that situation has changed since JWT’s time, nor how much influence the FS actually has in negotiation.
Meanwhile, the plaintiffs in that court case — the Santa Fe-based environmental group WildEarth Guardians — are asking the judge to exclude firewood permits from his order on Thursday.
“It was never our intention to affect firewood cutting,” said Executive Director John Horning, who claimed Forest Service personnel have been telling people to call WildEarth for the permits.
“That was the U.S. Forest Service … inciting fear in all sorts of ways and frankly scapegoating us,” he said. “It’s unprofessional for a federal agency that has broken the law and been held accountable by a judge to direct people to our organization.”
3. Note that in this news story, WEG is saying that they are asking the judge to exclude firewood permits from the order. To me, this implies the judge developed the order without the plaintiff’s desired sideboards. Is that a natural consequence of taking something to court.. the decision can be what neither party wants?
4. If WEG took the FS to court, and the judge makes a ruling, doesn’t WEG share some responsibility for that? Is WEG accountable for that decision going to court, even if the results are not what they intended? Not that it wouldn’t be unprofessional, in some sense, if the Forest Service directed them to call WEG. What would it look like, though, for people to hold groups accountable for actions that affect their activities. Note that these folks (say, people who want fuels projects done) can’t force the FS to monitor either.
5. Wouldn’t it be terrific if all of the ongoing communication between the attorneys (DOJ and plantiffs’) and the judge were available to the public? Then we would know who was being reasonable, if anyone.