When Can Feds Talk During Litigation? Grizzly Bear Restoration Plan for the North Cascades

Adult male grizzly bear with Wayne Kasworm.
The grizzly bear was captured as a research animal in the Yaak River drainage of northwest Montana.

When is it OK for employees to comment on topics/projects currently under litigation? Many of the FS stories we see say that the Forest Service can’t comment on existing litigation.  So I’ve described this as the litigation “cone of silence.”

But I recently ran across this article (many thanks to Nick Smith!). It’s interesting about grizzlies,  but also seems to focus on a current employee’s views of being stymied by the shutdown of a project- that a;so seems to be currently in litigation.  This may be an entirely different kettle of fish, and hopefully our legal TSW friends will explain why the situation is different.

The unexpected cancellation of the project took government biologists, wildlife managers and others aback.

“It was somewhat of an abrupt termination,” says U.S. Fish and Wildlife biologist Wayne Kasworm, a senior Interagency Grizzly Bear Committee member and principle figure for grizzly recovery programs in Washington’s Selkirk Mountains and Montana’s Cabinet Mountains. “It was a bit of a surprise to those of us who’d been working on it for years.”

….

Experience in Montana provided Kasworm with some background to relate to the Washington public during open meetings about what might occur in the Cascades if grizzlies were to be reintroduced there. Following presentations, he fielded just about every question in the grizzly book, including the obvious ones.

What are the chances of human injury? How many people have been killed by grizzlies over the past century? What are the potential impacts on livestock or the timber harvest? Why would we even want to recover grizzly bears?

That last question would occasionally come up during testier public forums.

“Well, we have the Endangered Species Act—plus the mission of a national park to maintain its natural environment and the species that reside there,” Kasworm would answer. “And because this is a recovery area for bears, there’s interest on the part of the U.S. Fish and Wildlife Service to look at this program and go through a public process …” And so on.

“It was just part of the whole process,” says Kasworm. “There are places where you run into a lot of supporters and it’s an easy meeting. And there are places where you run into more opposition. I’ve been through controversial subjects with grizzly bears a lot in the last 38 years. I recognize that it can be an emotional issue and people can get excited about it on both sides. But I’d say for the most part those public comment meetings went pretty well.”

Precisely how well is hard to say with a recovery plan that remains incomplete. But there was an overall trend.

I’m curious as to when it is OK for employees to talk about projects being litigated and when not.

Did the program’s sudden termination come as a shock to those who’d spent years working on it?

“Yeah,” says Kasworm, wary of going much deeper into a matter now in litigation.

Was there any clear explanation for the decision?

“Not that I’m aware of is the best thing I can say here,” he says. “The reasons for the termination lie with the Secretary of the Interior, Mr. Bernhardt, who made that call a couple of years ago.”

Was it frustrating?

“I probably shouldn’t say it, but yeah it’s frustrating. I mean, you work on something like this for several years. You’re partway through the whole thing. You’ve invested a whole lot of effort and money in the process. Then, all of a sudden, people just say ‘Stop.’ So yeah, there’s a certain degree of frustration.”

I felt the same way about the 1995 RPA Program that I worked on.. I totally get the frustration. Or the folks who worked in good faith on Alaska Roadless and were told from one side “your work doesn’t count, we’re going with no 2001 … and at the other end “your work doesn’t count we’re going with 2001.” That’s what I used to call the territory of “the pay’s the same” and “if you’re not the lead mule, the scenery never changes.”

Another interesting part of this article was about the reasons for reintroduction:

Why would we even want to recover grizzly bears?

That last question would occasionally come up during testier public forums.

“Well, we have the Endangered Species Act—plus the mission of a national park to maintain its natural environment and the species that reside there,” Kasworm would answer. “And because this is a recovery area for bears, there’s interest on the part of the U.S. Fish and Wildlife Service to look at this program and go through a public process …” And so on.

I think that’s pretty interesting.. because grizzly bears are currently expanding their range and increasing.  Plus National Parks occur everywhere within the former GB range… Santa Monica Mountains, Yosemite and so on.  Now why exactly do we “need” them back in California or Colorado?

From the reporter:

Now the target of a lawsuit brought by the Arizona-based Center for Biological Diversity, the aborted program provides a fascinating example of wildlife management that seems to eschew collaboration and transparency, produces unknown public expenditures, alienates researchers and turns creatures as mighty as grizzly bears into political footballs.

Hmm. Been there done that. Should grizzlies be exempt from football-hood?

 

 

6 thoughts on “When Can Feds Talk During Litigation? Grizzly Bear Restoration Plan for the North Cascades”

  1. I don’t know how the reporter could conclude that the original project “eschew(s) collaboration and transparency” when they had “reams of public comments,” so he must have been referring to its abortion by Bernhardt. That appears to have been arbitrary and capricious – but was there a federal agency action? That’s what plaintiffs are asserting. I think there have been cases where an agency formally adopts a no-action alternative (presumably where the agency perceives there is some benefit in doing so), but I think the usual approach is to just stop the process. Maybe that’s not legal.

    This litigation about no action makes an odd example for discussing what can be said about it. In particular, I don’t think it’s easy to separate the litigation reservations from not wanting to publicly disagree with your boss. (Would we expect the same frustration to be expressed over a decision to proceed with an action you had been working on?) In any case, I think Wayne sticks to saying how he feels about his work being aborted rather than how he feels about the merits of reintroduction. That’s probably ok.

    The FWS has not said we need grizzly bears in California or Colorado to recover the species.

    Reply
    • Not yet.. an argument could be made that with climate change Grizz from Montana and Wyoming will want to move north.. so that to retain pops in the US we’ll need to start more further south.. In fact maybe someone’s working on a model that shows that right now 😉

      Note: that’s not my argument.

      Reply
  2. The north cascades GB recovery zone was identified as needed to “recover” the species in the 1997 GB Recovery Plan. Recovery plans are listed in the federal register for public comment and responses. The Service did not determine in the recovery plan that the species’ return to CO or CA is needed for recovery. Of course, one could debate if the identified recovery zones represent a significant proportion of the species range or if more is needed to “recover” the species. Many environmental groups would argue that more is needed, others would argue that Yosemite alone is enough.

    Reply
  3. My take on Kasworm is that he’s a pretty level headed fellow. So he managed to keep his cool. Smart.

    But he / they missed the best , bigger bang for your buck” answer about grizzly bears; The citizens of the country want them back in some of the places there have been historically. Yep, Americans want them back – thats why you / we have the ESA and a grizzly recovery plan. they are simply an extension of citizen acceptance and demand. And to make it through to legislation? thats pretty uncommon, specially today.

    So Bernhardt was simply doing what the trump gang was good at – stiff arm in your face, citizens.

    Reply
      • They would if they were proposing it. And if I do want them in your area (maybe because that would mean it’s more likely they will continue to exist in MY area), should that opinion count less? How about if I have actual experience living with them in my “back yard”? Should that count more? (If it’s ESA you don’t like, you can write your Congressman, just like the rest of us that do.)

        Reply

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