Scientist “Rebuking” Other Scientists in Court? OSU Scientists (and Others) at Loggerheads

Sorry for the headline.. couldn’t resist.

Thanks to Nick Smith, I found this article. I don’t think the context will surprise anyone. I think it’s a good article in terms of showing both sides.  Hopefully you can access it with a free sign-up, fortunately I had a “non-free” email account to use to sign up.

Law360 (March 31, 2023, 7:26 PM EDT) — An ecology professor at Oregon State University rebuked her colleague over his support for new regulations that weaken protections for large trees in the Pacific Northwest, telling a federal judge that scientists are divided on whether such trees pose a legitimate wildfire risk.

The new rules, which the U.S. Forest Service adopted in early 2021, replaced a set of restrictions known as the Eastside Screens that outlawed removing trees more than 21 inches in diameter from almost 8 million acres of national forests in the Cascade Mountain Range.

Contrary to what the Forest Service and a group of scientists have testified, large trees do not substantially contribute to wildfires, according to Beverly Law, a professor in the Department of Forest Ecosystems and Society at Oregon State.

Law, whose formal title is professor emeritus of global change biology and terrestrial system science, told an Oregon federal court on Wednesday that she joined more than 150 other scientists in opposing the Eastside Screens revision before it took effect. Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

That claim to a scientific consensus, Law told the court, “does not accurately reflect the state of the science generally on these topics, nor specifically the best available science and field verification of the condition of the forests at issue in this case.”

The interdepartmental spat — at a university whose mascot is the timber-minded Benny Beaver — comes amid litigation that six environmental groups initiated last June.

Forest Service officials, the groups claim, followed a shoddy review process before adopting the Eastside Screens amendment by forgoing a full environmental study and stifling public opposition.

A group of 15 scientists, led by Oregon State professor James Johnston, is defending the change in a not-yet-approved amicus letter, saying that forest-thinning activities have prevented ecological disasters and benefited the natural environment. Indeed, “no meaningful controversy among scientists exists” on that topic, they told the court in a Feb. 10 submission.

For those curious at this point, here are the 15 I. Derek Churchill, Ph.D., Forest Health Scientist, Washington State Department of Natural Resources 2. Don Falk, Ph.D., Professor, University of Arizona School of Natural Resources and the Environment 3. Jerry Franklin, Ph.D., Professor Emeritus, College of Forest Resources at University of Washington 4. Keala Hagmann, Ph.D., Research Ecologist, Applegate Forestry LLC
5. Lori D. Daniels, Ph.D., Professor, Department of Forest and Conservation Sciences at the University of British Columbia 6. Matthew Hurteau, Ph.D., Professor, Department of Biology at the University of New
Mexico 7. Meg Krawchuk, Ph.D., Associate Professor, College of Forestry at Oregon State University 8. Norm Johnson, Ph.D., Professor Emeritus, College of Forestry at Oregon State University 9. Peter M. Brown, Ph.D., Director, Rocky Mountain Tree-Ring Research 10. Robert W. Gray, Fire Ecologist, R.W. Gray Consulting, Ltd. 11. Scott Stephens, Ph.D., Professor of Fire Science, University of California Berkeley 12. Susan Prichard, Ph.D., Fire Ecologist, University of Washington School of Environmental and Forest Sciences 13. Thomas H. Deluca, Ph.D., Dean, College of Forestry at Oregon State University 14. Trent Seager, Ph.D., Director of Science, Sustainable Northwest. Back to the story:

But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.

That group told the Forest Service that weakening its tree protections was “highly controversial from a scientific perspective” and accused the agency of “rushing forward without adequately analyzing the impacts of the proposal on wildlife habitat, aquatic ecosystems, hydrological cycles and carbon values.”

Law, in a declaration filed by the environmental groups, cited past research indicating that large trees create a canopy that prevents sunlight from drying out the forest floor — a key to preventing wildfires. Debris on the forest floor accounts for around half of the combusting material in a wildfire, she noted, whereas large trees rarely ignite.

Johnston and federal regulators, Law argued, “are making a mountain out of a molehill.”

“We cannot know where wildfire will burn, yet they have eliminated protections for large trees based on a gross overstatement of the risk so that the Forest Service will be able to authorize the preemptive killing and removal of large grand fir trees across the entire landscape,” she said.

Adopted in 1994 as a broad series of timber regulations, the Eastside Screens included a blanket prohibition on removing any tree measuring more than 21 inches in diameter at “breast height,” a standard measurement in forestry.

The federal government began exploring possible amendments to that restriction in 2020, noting that climate patterns, long droughts and poor forest management have produced a worsening pattern of wildfires. Rather than a blanket protection, the rules adopted a year later by the Forest Service carry only a discretionary guidance to preserve some old and large trees.

That policy shift, the agency has argued in court, “satisfies all statutory requirements and enjoys strong scientific support.”

“The weight of scientific consensus counsels the Forest Service to mitigate [wildfire] threats by actively managing forests to favor more historically prevalent, fire tolerant species,” it said in February. “But that change is impossible if the Forest Service cannot cut any competing fire intolerant species over 21 inches in diameter.”

Two advocacy groups, the American Forest Resource Council and the Eastern Oregon Counties Association, are backing the revisions as a common-sense move that doesn’t spell ecological disaster.

But the environmentalists want to focus on their allegations of procedural errors. The groups, in a court filing on Wednesday, said the Forest Service “shortened the [amendment] process and swept substantial controversies under the rug.”

“This court need not wade into the scientific debate to determine that important steps were skipped,” they said, adding that “the failure to abide by the required procedural steps necessitates vacatur and remand of the Screens Amendment.”

The plaintiffs have sought to keep Johnston from getting amicus status, arguing in February that his opinion “is already both functionally and legally represented” because he consults for the Forest Service.

1) I also thought this was an interesting disciplinary observation..

Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

This seems like a fuels and fire behavior question to some extent, and also a tree physiology question.  It would be interesting to discuss why some scientists in some disciplines come to different conclusions based on what kinds of evidence. Not that this discussion will happen in the courtroom environment.

2) I wonder about the amicus letter thing.. Maybe our legal minds here can weigh in.  What is the difference between Law testifying (giving her opinions) and Johnston et al. giving their opinions to court? If 15 scientists signed on to the amicus letter and she thinks that isn’t kosher because Johnston takes bucks from feds, what about the others? Don’t all university scholars take bucks from feds? Is the difference consulting vs. research?

3) “But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.”

I don’t think he would have to.. isn’t that the role of the response to comments in the EA or EIS? Does her testimony note objections from Johnston?  It doesn’t seem like a legal thing to do that, but I don’t know.

4)  Yes, Johnston is helping Blue Mountains Partners as part of the CFLRP (as far as I understand). As part of that the people there decide what to be studied and have the funds to study it.  It seems to me that local scientific knowledge would be prioritized in some sense over non-local. So Johnston shouldn’t get paid to do that exceedingly useful work? I find this most concerning of all of this.

5) Wouldn’t it be interesting if OSU would  pioneer some kind of scientific joint-fact finding effort in which scientists could engage in discourse with the public about their research design, findings and interpretation? It could be a model for such disagreements and be a form of science education, both to the public and to students? They could bring in the best minds on environmental conflict resolution and other experts… And field trips!!!

50 thoughts on “Scientist “Rebuking” Other Scientists in Court? OSU Scientists (and Others) at Loggerheads”

  1. “…whether such trees pose a legitimate wildfire risk.”

    Removing the 21+ inch trees is often needed when they are competing with much larger, more fire-resilient trees. Competition from such “large” trees weakens the larger, older ones. I’ve seen areas in eastern Oregon where “large” 50- to 100-year-old grand fir, and sometimes other true firs and Doug-fir, surround truly old-growth ponderosa pine that are dead or dying. Without removing some of the “large” grand fir, these stands are well on the way to a stark change from widely spaced centuries-old ponderosa pine to dense grand fir stands. If the folks who are opposed to cutting “large” grand fir want to protect old-growth, as they say they do, they are actually consigning the true old-growth to death and facilitating a change in forest cover to a type that will, one day, burn at high intensity. What would Professor Law say to this?

    • Along these lines Hessburgh et. al. recently published a detailed science review of the Eastside Screens which includes some history and background. The authors summarize their views on the continued utility of the 21′ rule at p.78, Box 25, a summary which agrees with Steve’s views.

      Some years ago I remember Jerry Franklin making a pretty strong case that the 21′ rule didn’t make much biological sense, but he acknowledged that such a bright rule helped reduce the political temperature on the east side because it was so easy to explain and monitor.

      And it’s safe to say that OSU professorial disagreement on timber management issues is nothing new. See, e.g.,

      As to the distinction between statements in an amicus brief and a declaration, litigators are much better positioned than I am to comment. My guess is that to the judge that distinction isn’t all that relevant: the key question in most admin law cases is whether there is a reasonable connection between the information in the administrative record and the agency’s conclusion.

      • Thanks for the link to the paper on the Eastside Screens, Rich. Here’s the box:

        Box 25
        Long-Term Utility of the 21-Inch Rule
        The 21-inch rule is a policy tool that was designed to meet a need in 1994
        (Powell 2013): halting the logging of large trees in eastern Oregon and Washington.
        Large and old trees have both ecological and social values, and there is
        widespread public support for protecting them and for active management to
        restore them on the landscape. However, the 21-inch rule may not allow managers
        to consider advances over the past 25 years in ecology, conservation science,
        and social science, and may limit manager flexibility to reach evolving restoration
        goals where flexibility is key. For example, it does not provide protection
        for older but smaller trees that may play an important ecological role. Nor does
        it allow for removal of young but large shade-tolerant trees that are maladapted
        to the existing fire regime and that developed over the period of fire exclusion.
        Hence, retaining these trees can be inconsistent with the desired future conditions
        recommended by new climate- and wildfire-adaptation science.

      • Yes, the salvage discussion was what triggered the Donato business in Science and much following OSU drama. That’s one reason I think it would be good to explore ways of handling scientific disagreements at that school, it seems to be somewhat more common- or at least direct engagement- than elsewhere. I look at it as a grand opportunity. Yes, easy for me to say.

        I remember the Donato paper as “cats crush seedling therefore salvage logging is bad” paper that highlighted Science (the AAAS pub) as choosing current politics over scientific care. Matthew posted this from 2006 that gets into the internal OSU drama.

        So here we are in 2023. All of us are older and wiser. What would we do differently? What is the real source of our scientific differences (hint .. the 15 scientists are not functionaries of the “timber industry”..)

    • Questionably theory the ponderosa is dying because of other trees..could be even without other trees the drought is the cause. Here in N.M. Rockies pomderosa pines have succumbed especially at lower marginal elevations from 1992 forward associated with lack of monsoons and little snowfall. While Rocky Mountain Concolor Abies has survived along with Pinon Pine and One seed Juniper…theory being had all the three other species been cut- P.Pine would still have succumbed..This all goes to guessing game until mother nature leads the way and hundreds of those Phds were unnecessary apendages of a system now in decay.

      • Interesting. I think the data that Abies (grandicolor hybrids mostly) will die in droughts that ponderosa will survive comes mostly from eastern OR, so it could be different in NM. Pinon and juniper being more drought tolerant is not a surprise. Did the firs survive at the same elevations and settings where the pondos died? Let me know if you know of any published data on that. One variable could be the timing of outbreaks of western pine beetle vs outbreaks of fir engraver.

  2. It appears that Dr Law is creating a smoke screen. While larger trees are more resilient to fire, the tree diameter issue is directly related to tree density and tree health, not wild fire risk. Our east side forests are dying from issues such as insects and drought due to tree densities that are too high to sustain a healthy forest. I have personally seen older white fir trees that were under 100 years old succomb to drought where they looked healthy a few years before. The more favorable climate in the early 1900’s and mid to late 1900’s, along with fire suppression, resulted in an enormous increase in the density of trees that require a higher precipitation than is “normal” for the east side.

    • completely agree: that’s why Dr. Law’s protests are a smokescreen: she want to focus exclusively on direct evidence of the big trees making the forest more fire-prone, taking the focus away from resistance to drought and insects, and from forest density making the forest more fire-prone.

    • No , I believe Dr. law is correct and commendable for challenging the USFS new policy to remove protection for 21″ plus trees..and certainly the public sees purpose in preserving the 21″ + for a future moment in time..

  3. Thanks, SJ! I didn’t know the details of Johnston’s funding.

    This is interesting because whether or not there is a controversy seems to be only important insofar as there is a perceived need to do an EIS, at the end of which it would seem we would end up with the same disagreement. So is the legal question “how much of a controversy counts as a controversy for that purpose?”

  4. Sharon posits “isn’t that [noting the objections of others] the role of the response to comments in the EA or EIS”
    Normally, yes, but I think this case arises in part because the FS did not prepare an EIS, and did not provide an opportunity for objections. So this sensible response to comments never really happened.

    • There are often responses to comments in EAs and comment periods. That’s why they’re called Draft and Final EAs..

      My point was rather it was the FS’s job to respond to comments- not Johnston’s.
      Here’s the quote:
      “But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.”

      Maybe the article misquotes her or she wasn’t careful with language, or she really doesn’t understand. We don’t know.

  5. Your post is a false equivalence wrapped in feigned impartiality.

    Haven’t you and don’t you represent the conservation groups challenging this decision in other cases? Isn’t it an ethical conflict for you to be weighing in on this case against your clients?

    Why don’t you share with this group that you have assisted the Forest Service behind the scenes on getting rid of the protections for large Grand fir trees?

    Note – OSU and, the scientific journals and publication records establish that Dr. Beverly Law is among the top 1 percent of most cited experts in the world on these subjects. She was recently named Best Female scientist of the year by

    • And yet, I heard from OSU scientists who classified her as an “emeritus carbon modeller”.. disciplines are a thing.

  6. Don’t you represent the plaintiffs in other cases? Isn’t it an ethical conflict for you to be weighing in on this case?

    Isn’t true that you worked closely with and assisted the Forest Service behind the scenes on their effort to eliminate the protections for large Grand due trees?

    • Whoa, Anonymous! Please explain what kind of “ethical conflict” you mean. People get to have opinions and express them, in my ethical book.. I don’t understand.

      • The lawyer kind.

        Representation of both sides in a legal matter or proceeding.

        Representation of a current client against a former client.

        Oregon DR 5­-105 Conflicts of Interest

        • But is “giving an opinion on social media” the same as “representing”? That would mean an attorney who once worked with the, say, Sierra Club, would never be able to disagree with any statement they make in future litigation for the rest of their lives?

  7. At one time, I would have whole-heartedly agreed with Beverly Law, and would have been writing letters upholding the eastside screens and the 21 inch rule. As always I continue to cherish large old growth trees. The problem is that some trees particularly grand fir are not all that old, yet have crossed the 21 inch threshold. I like to look at forests historically. I have done extensive replications of the Osborne Panoramas. The general pattern is that since the 1930s east-side forests have become denser and more spread out …………or all burned up with smaller patches of green. While doing my Osborne Panorama work, I often walk through stands and look for old stumps, and then imagine the density that once was. Whatever the condition was in the 1930s chance are that density was even less in 1855, when the Treaty of Walla Walla was signed and native peoples were put on reservations. If we are to put forests back in a condition where there will still be forest with green trees, we need to re-shape both species composition and density to one of fewer trees, and a greater portion of fire and drought adapted species. Yes, shade matters but it does not require a continuous canopy to provide enough shade. Beverly Law is being counterproductive to the restoration of our eastside forests. I continue to be amazed at academics with high standing who get ecology wrong!!

    • John, I think academics easily can get things wrong because they are in a system which :
      1) allows extrapolation from the areas they know to other areas, consciously and subconsciously, both in terms of geography and disciplines
      2) lacks direct feedback from practitioner, local and Indigenous knowledge in developing research proposals and analyzing and interpreting data.
      3) encourages modeling with satellite data because it’s easier and cheaper than actually experimenting- but is seldom ground-truthed.
      4) encourages scientists to over-state the relevance and reach of their findings.

      And then the fact that zillions of disciplines and subdisciplines are jockeying for attention and funding.. and don’t necessarily coordinate with other disciplines.

  8. Laissuz faire at USFS: defined ” let others do as they please” , we here at USFS are camped out in the office till further notice! The Abies Concolor is a most beautiful tree. I can see the argument. But the facts are if USFS leaves discretionary choice to the logger, you can bet your azz the 21″ and bigger will become horizontal in no time at all. Irregardless of whether a much larger old growth ponderosa pine is being saved..such is a nuts and bolts issue.letting the for profiteer decide and not the Forester! The USFS in its office attired lazyness doesn’t want to have to cruise the forest landscape piece by piece and thru honest Forestry discretion , uninhibited by profit motives, mark the bigger trees as ” leave or cut”…the USFS in its laziness has chosen to stay in the office or the truck and let the loggers in the field decide..” use their discretion” . Pretty much a “Carte Blanche”..for loggers and “laissez faire” for the USFS- out for lunch! Maybe I’m jealous having been a logger or maybe I know .
    But then i’m the anti- controlled burn -named changed to prescribed burn , after so many controlled burns by USFS proved they can’t control fire..the anti science theory not science to light the forest on fire to save it from catching on fire , where a year ago just now in New Mexico USFS forest employees , too lazy or uninvolved in real Forest Management were lighting up a prescribed burn that decimated over 340,000 acres aka Hermit Peak , Calf Canyon…the forest was dry, dry, dry a year ago this week and USFS in its laziness didnt even notice..sadly though for all that now dead forest landscape but good for all that survived USFS there has been this winter record amounts of precipation fallen across the Rocky Mountain Region and most every tree and landscape the USFS didnt torch a year ago is looking mighty green..I was unable to purchase more evergreen seedlings to plant on my own humble forest because all seedlings available are headed to replant the fired destruction landscape …how do I make a claim – entire new growth planted 2023 to evolve into future old growth will just have to wait because 7 miles away the USFS had a scientific plan to set the forest on fire , there by saving it from ever catching afire in the future and causing a mega fire!!

    • “But the facts are if USFS leaves discretionary choice to the logger, you can bet your azz the 21″ and bigger will become horizontal in no time at all. Irregardless of whether a much larger old growth ponderosa pine is being saved..such is a nuts and bolts issue.letting the for profiteer decide and not the Forester!” Very true. This seems like an extension of “condition-based management,” but is it part of the Eastside Screens Amendment?

    • As a former Timber Sale Administrator, I can safely say that I never let the loggers do whatever they want. It is much more important to me to follow all the rules, laws and policies, as well as the contract provisions. Of course, the marked (cut) trees all have ‘butt marks’ on the stumps, after they are cut. Or, the leave trees are marked (with butt marks) and are left standing. Sometimes we have more local ‘rules’ to follow, regarding the ‘process of work’. The loggers need to clean up their landings and waterbar skid trails as close behind them as possible. Additionally, I did not allow trees to be cut until the skid trail pattern was inspected and approved, by myself. Such rules forced both parties to be efficient and responsible for keeping the project moving forward. Some loggers thrived under that, and some struggled, mightily. It did, however, make us all work together, with a better ‘finished product’.

      I got along with the loggers pretty well. Sometimes I butted heads with the mill’s representative, who is supposed to control his contractors and sub-contractors. They often wanted me to control their loggers. I wasn’t really overly confrontational, but I was there, on-site, 98% of the weekdays.

  9. Sharon- I love your insights about academics. I would add that scientists are only humans and have all of the emotions and bias that the rest of us do. Perhaps retired scientists feel less restrained than those who are still employed. As a college student, I was in awe of anyone with a Ph.D, and thought of them as infallible. I no longer do. I will add to your list of items an insight of my own- there is an emphasis on quantitative analysis. People who can do high level math and modeling wizardry are thought to be genius. The problem is that if the right questions are not being asked, and the right data sets obtained, it is all mental gymnastics. John

  10. Just want to add, it’s not only true fir that grow fast and crowd the forest. There are plenty of pure ponderosa stands in Oregon where a high density of trees reach 21″ by 90 years of age.

    Along with the stand density, the young trees have a higher sapwood ratio and lower water use efficiency compared to old trees. Water is the primary currency of protection against drought and beetles, and a major component of resisting and recovering from wildfire.

  11. Everyone concerned about stand density will be happy to know that removing trees less than 21” dbh will go a long way to solving that problem, and retaining trees larger than 21” will help conserve carbon, recruit snags, and maintain public trust.

    People confidently advocating for removal of large trees show an unjustified level of certainty that restoring the last incremental bit of stand composition and stand density is more important than carbon, climate, snags, and public trust.

    • If one could thin to the desired basal area without cutting any 21+ trees, that might work. If one can’t do so, then the option of taking those “large” trees is crucial.

      • Headlines in New Mexico newspaper last week was feds are prepared to pay out claims up to 4 billion dollars for the damages of Hermits Peak / Calf Canyon Fire…Wilent is indicating all areas cant be mechanical thinned properly and thus take 21″+…how about USFS damages that require the Feds’ kick in $4 billion when that money could surely have funded an army of mechanical thinning – and in the NWest where productivity is much higher…get ready now for the A = anomous poster to mention my tin foil helmet is showing; as i say the Feds like to spend 4 billion which ads to the national debt with the world bankers who are now getting a 4% return on the total national deficit…piling upon that with new declared federal emergency money…if the taxpayer hears $4 billion being spent to thin a forest the starving masses are likely to complain but if its a disaster such as hurricane or now very expensive prescribed burns -the average American just does not see! 4 Billion in the headline- really did a double take seeing that because thats ” a hell of a lot of money” , but there is no doubt sociologically / economically to New Mexicans the damages to those and to localized commerce is very evident and needs a just remedy. Evidence is quite ” wide—spread”
        USFS needs some different brains , be it people with common sense.
        Young 40 year old neighbor ask me today of all the presidents who was the best and I replied JFK and RFK , and a bit confused he said RFK wasnt president which i relied he was about to be elected had just one the democratic primary and lets just say silenced ever since…From 1963 forward the USA has been on a slippery downhill slope . 4 billion in damages caused by a prescribed burn and yet still a boatload of well paid academics tooting their horn to set the forest on fire to protect it from ever catching on fire..obviously Dr. Laws’ motive is purely about continuing to protect 21″ plus Grand Fir and has zero to do with economic incentives…looks like USFS did a runaround without full disclosure leading to ” let the loggers use their own discretion” which leaves much to question??

    • Some ‘scientists’ seem to want to throw out actual site-specific conditions, in favor of ‘modeled’ conditions. Some groups want to eliminate Forest Service discretion, in favor of the age of individual trees. Just how are we going to get the age of individual trees without using an increment borer?

      • Thats it, run around the forest boring holes in trees and spread disease everywhere..alot of people getting paid alot of money and the end result is : just opinion about how to fix what didnt work from previous theory…not science bit theory and unlike mathematical theory this is all conjecture with the only proof the forest are being ruined.Bit give everybody a raise!

  12. Steve- Your point is well taken, but I would add another reason why we need flexibility to be able to take trees over 21 inches dbh. Reducing density is just one objective in forest restoration. The other objective is restoring the species mix to one that will be more resilient in the face of climate change. As you are aware, over the past century or more Douglas-fir has increased it’s footprint in forests historically dominated by ponderosa pine. Grand fir has increased it’s footprint in mixed conifer forests at the expense of ponderosa pine and larch. Our current forest condition is less adapted to drought and fire than the historic forests, at a time when drought and fire will be more prevalent. Obviously we don’t want to wipe out grand fir, but we have too much of it…… and we have too many D-firs where we should mostly have P pine.

    • A agree, John. The status quo is a recipe for bigger, hotter fires that kill even the large, old trees that can withstand — and depend on — low-intensity fire.

      • It is ironic that the loudest opposition to measures needed to increase the odds of survival of our forests and most magnificent trees in the face of climate change is coming from environmental groups- not to paint them all with the same brush. It does not help that a minority of credentialed scientists throw monkey wrenches into the mix, thus validating misinformed opinions. Bev Law is highly trained in some areas of ecology, but seems to have some blind spots, or maybe has given into bias and emotion, now that she is retired.

  13. I wondered about that last point, too. Does the court accepting the Law declaration as extra-record evidence suggest that the agency record was inadequate on this point (which might be a weakness in their case)?

  14. I think the key question here involves this statement of the Forest Service position: that “actively managing forests to favor more historically prevalent, fire tolerant species” “is impossible if the Forest Service cannot cut any competing fire intolerant species over 21 inches in diameter.” Simple logic says that cutting competing fire intolerant species UNDER 21 inches would “favor” the desired species. Their position is indefensible on its face. In addition, the Hessburg paper (thanks, Rich) is full of qualifiers that the 21” rule “may” have certain effects – far from the certainty espoused by the agency allegation that it would render certain management “impossible.”

    The Forest Service also apparently attempts to defend its position without addressing Law’s specific issue directly. Whereas Law cited past research “indicating that large trees create a canopy that prevents sunlight from drying out the forest floor,” the Forest Service responded with the “weight of scientific consensus” about “favor(ing) more historically prevalent, fire tolerant species.” The research cited by the Forest Service does not dispute the value of large trees (of any kind) or the adverse effects of removing them; it just counters with alleged benefits. If they only discuss the effects they like, that would not comply with NEPA. I have not been involved with this case, but it looks to me like it is not about conflicting science; it is more about ignoring relevant science (illegal under the APA).

    I’m thinking mostly about erring on the side of at-risk wildlife, and I can understand that there “may” be situations where existing old growth would be better off without other big water-hungry trees nearby (or where there may be no wildlife issues). However, this is all about site-specific (and maybe even tree-specific) effects, and there is no showing that the current use of plan amendments, where warranted for a specific project, is less appropriate or insufficient (never mind “impossible”) to address these situations.

    • Jon said:

      “it looks to me like it is not about conflicting science; it is more about ignoring relevant science (illegal under the APA).”

      Exactly right, and this is one of the most frequent ways a federal agency loses a NEPA case. Judges don’t weigh competing scientific claims; their job is to ensure that the agency did so. If the FS in fact simply ignored scientific info that cast doubt on its decision, it will probably lose. But the court itself isn’t placing competing scientific studies on the pans of the judicial scale (which is another reason why, as we’ve discussed before, courts don’t generally get too hung up over who is paying or has paid a given scientist).

      • Ah, but who decides what is relevant? Everyone claims that their research is relevant.. but as Tom Mills used to say “reasonable people can disagree.”

        • The agency can (and should) determine what is both “relevant” and “best available” science, subject to the usual arbitrary and capricious standard in the APA. It is opponents’ responsibility to raise these kinds of issues during the decision-making process, and if they do, it’s not that hard for courts to tell if the agency “blows it off.” It is also way too common for agencies to document very little about their rationale for these kinds of calls, which may lead courts to question whether they made a “reasoned” decision.

          • OK, I’m against “blowing it off”. But what should the Agency do.. one para in response to each of 100’s of citations? Seems like a lot of gray area to me.

            • The plaintiff needs to more than just cite a study – it must explain why the agency’s failure to address that study constitutes reversible error. While there are no hard and fast rules, here are some common ways agencies mess up the use of best available science:

              1) The agency ignores more recent scientific information. For example, if the logging project in question would affect Indiana bat habitat, and the FS relies on a 2018 study but ignores one looking at the same issues published in 2021 suggesting the effects would be more severe, the agency would probably be in trouble.

              2) The agency fails to reconcile conflicting scientific information. Modifying the above example, now the FS hasn’t completely ignored the 2021 study – it’s in the administrative record – but the agency fails to explain why it does not consider that study reliable.

              3) The agency relies on scientific information that is obviously inapplicable to the project at issue. In approving regulations relaxing requirements for blowout preventers in the Gulf of Mexico, BOEM (or whatever it was called then) included in its EIS scientific information regarding the effects of oil spills on polar bears, a species not known to frequent the Gulf.

              There are closer calls than these, but as Jon noted, the burden is on the plaintiff to prove the agency messed up, not on the agency to prove the plaintiff’s arguments are wrong.

              • Thanks, Rich. That’s helpful. What does the agency need to do if it has, say 30 papers that support a key project activity, but 5 that say such an activity would not produce the desired effects or would be harmful? Does the agency have to state that it considered the 5 papers and give some justification for why is disagrees with them?

                • Yes, that’s how it works. In general I think the justification need not be voluminous (although others please weigh in here if I’m missing something), but enough to show the judge that the agency read and understood the contrary papers and provided an explanation in the record why those papers were unpersuasive.

                  This isn’t always an easy exercise, and as my corporations professor once said, “a judge can screw up damn near anything,” but it should be a surmountable hurdle. (And I’ll admit that this might be easy for me to say as one who has never had to design or decide upon an actual project – your mileage may vary.)

  15. Law’s “canopy that prevents sunlight from drying out the forest floor — a key to preventing wildfires” gets trotted out endlessly by people of that faction, and it misses the point ridiculously, at least in regard to dry forests with ponderosa poine. We DON’T WANT to prevent fires in ponderosa pine forests, we want them to be frequent and low. The historical forests that we want to emulate were sparse, with tons of sunlight hitting the floor, and they burned frequently and low.
    The issue is not carbon versus historical restoration. The carbon advantage of retaining the medium-sized trees being debated here is going to be ephemeral, because more trees will die in droughts, or burn.
    I’ve read the literature pretty intensively for years, and I have a lot of respect for the 15 scientists who signed the statement. In contrast, Bev Law’s group’s papers sometimes jumped out at me for striking instances of bias. One that comes to mind: to back up a questionable statement about the life expectancy of carbon in buildings, they cited exactly one article. I looked up that article and found it to say basically the opposite of what they were using it for. I emailed its author, who agreed that they mis-cited him. (Law et al. in PNAS 2018 vs Tollefson in Nature, 2017).

    • Daniel. I’ve seen some strange numbers for building turnover..having lived in hoods with homes from the 1800s to 1950s..can you recommend a paper that explores all that, more or less fairly?


Leave a Comment