While this is normally Jon’s bailiwick, this settlement is of particular interest. Here’s the article from the Daily Montanan, without a paywall.
This story describes a settlement of litigation on a project in Montana. It would appear to an outsider, and by Garrity’s own claims as reported (I bolded below), that their organization’s views had an outsized role in determining on-the-ground specifics of projects. Once again, the way it works is that DOJ gets credit for settling..the Forest Service gets credit for doing things, so it appears that different federal agencies have different goals. For folks relatively new to TSW, I wrote a post in 2011 on Chief Jack Ward Thomas’s experience at being overruled by DOJ:
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.
Now I don’t have any insider information about this particular settlement, so perhaps this was not the case with this one. From the news article:
Under the agreement, accepted by federal district court Judge Dana Christensen, the United States Forest Service can still move forward with aspects of the massive plan, including the Crouching Trout Timber sale, which authorizes nearly 25 miles of temporary or current road construction. The Crouching Trout timber portion covers approximately 1,600 acres.
Originally the project touched three Montana counties — Lewis and Clark, Meagher and Broadwater counties — and called for more than 53,000 acres of tree cutting and burning, 6,669 acres of commercial burning, and 45,934 acres of burning, plus more than 100 miles of road building. The groups had argued in federal court that the project was illegal and could disrupt critical habitat for several species.
The project was originally slated as a 20-year project in the Helena-Lewis and Clark National Forest and the Big Belt Mountain Range.
As part of the agreement, the Forest Service can continue with the “associated activities” in the Crouching Trout Timber sale. The service also agrees to limit prescribed burning to the “inventoried wilderness areas” of no more than 25% of any area.
The U.S. Forest Service also agreed to produce annual summaries of the prescribed burning in the Middleman Project, “including units where burning has occurred and the acres burned.”
The U.S. Forest Service also agreed to a $39,000 lump sum payment to settle claims of attorneys’ fees.
Previously, the conservation groups had argued that the central Montana land was a key part of grizzly bears’ habitat and made it easier for “genetic exchange” between the populations of Yellowstone and Glacier National Park areas.
“We are thrilled that the Forest Service agreed to settle this case,” said Mike Garrity, executive director for the Alliance of the Wild Rockies. “We stopped over 100 miles of road construction and reconstruction in the forest, and we stopped over 5,000 acres of commercial logging in lynx and grizzly habitat.”
I’ve looked at the Board of Alliance for the Wild Rockies and they seem like nice people. There appear to be two Montanans, a Utahn, and an Idahoan. It’s not clear to me who funded the lawsuit.
Here’s a link to their 990. It looks like the source of their funding is restricted, but maybe I’m reading it wrong.
My point is not that folks shouldn’t have views. It’s not even that rich people shouldn’t fund whatever they want, through the processes like 501c3s and c4s, that we have in this country.
My point is about justice. Some people’s views count much more than others, apparently. Possibly people (funders) who have never set foot in Montana. They are not political folks who have some accountability to the broader (Montana) public via elections. We can’t even examine their diversity in the terms we usually use.
As far as we know, they (nor the DOJ) folks haven’t read nor considered public comments on the project.
I haven’t mapped the project itself, but certainly parts of Lewis and Clark County are identified as disadvantaged in the CEQ Climate and Economic Justice screening tool. So I guess there is an environmental justice perspective as well. We need to listen to the voices of those communities, and that’s a major push for this Administration.. but they were not in on the settlement discussion. Maybe this is another case in which agencies are not aligned.
Interestingly, AWR has a page about its supporters. Senator Sheldon Whitehouse from Montana, Reps Raul Grijalva from Arizona, Carolyn Maloney from New York, Jimmy Carter, Carole King (Montanan), and Gloria Estefan.
Now, I’ve heard the argument that they are federal lands, and so anyone across the country should have an equal vote on what happens.. as one EPA senior executive said to me “an apartment dweller in New York should have an equal voice to a resident of Delta” (we were in Delta, discussing a project on the GM).
I call that the “property rights” argument. But this is not that.
Funders we don’t know, from where we don’t know, whom no one elected, are effectively setting policy for a piece of the country, with those policies having an outsized influence on local residents. Their intentions are noble. I agree. But noble intentions combined with political power don’t always work out so well for ordinary people, as some of us older folks recall from 20th century history.
Although I’m generally a critic of the every-square-inch-is-sacred wing of the environmental movement, I can’t fault AWR for having prominent supporters who live elsewhere. I notice that the executive director earned about $77,000 last year, which, the cost of living being what it is, is barely a living wage.
The 990 mentions that the organization hires lawyers to pursue its aims. Since it is reporting less than $1 million in revenue, the lawyers may be volunteers, working pro bono.
L- like I said, these are fine people who I’m sure believe in what they’re doing and are using the system as it exists to further their policy ends.
Lately I’ve been around a few academics, so forgive me if I picked up some of their lingo. My point was that this could be considered an “unjust system of oppression” where people with more money get more of a say and the voices of others are not heard. My intent was not to judge people who work within existing systems and institutions, but rather to question the systems themselves and whether they are operating in a just way, and whether they may need to be transformed to bring about a more just future as our society deals with a host of environmental trade-offs.
Sharon,
“My point was…..but rather to question the systems themselves and whether they are operating in a just way, and whether they may need to be transformed to bring about a more just future as our society deals with a host of environmental trade-offs.” OK…
So let me throw out some definitions:
1. “Justice is the ethical, philosophical idea that people are to be treated impartially, fairly, properly, and reasonably by the law and by arbiters of the law, that laws are to ensure that no harm befalls another, and that, where harm is alleged, a remedial action is taken – both the accuser and the accused receive a morally right consequence merited by their actions”
2. “Social justice is justice in relation to a fair balance in the distribution of wealth, opportunities, and privileges within a society where individuals’ rights are recognized and protected.”
So you want to “bring about a more just future”. Are you saying that somewhere in the justice system used by AWR that people are NOT being treated impartially, fairly, properly, and reasonably by the law and by arbiters of the law? Or Is your issue that there is not a fair balance in the distribution of wealth, opportunities and privileges (as seen by you) or that individual right were not recognized and protected?
I think your desire to have a “more just future” is noble but should not be confused with the desire to have a different outcome based on your values or wants.
Was AWR afforded an advantage? Who’s right were not recognized or protected, or is it a issue of wealth, opportunity distribution or fairness?
Interesting point about Chief Jack Ward Thomas’s DOJ experience and his comment “Department of Justice does not consider the Forest Service a client”. Something to ponder: DOJ mission – The mission of the Department of Justice is to uphold the rule of law, to keep our country safe, and to protect civil rights. The key point is “uphold the rule of law”, so if DOJ feels an agency is not following the law then they are not obligated to defend the agencies action are they???
I’m not convinced that it is not a “property rights” argument you are presenting (loss of commercial harvest, jobs and revenue.)
So, yes what is the balance going forward in a fast changing environment?
Thanks for the clarification, Carl! Once again, I’ve gotten tripped up by abstractions. I actually don’t have a desired outcome here, I’m just pointing at the process (in other words, I’d have the same concern if Joe’s Timber Company had a settlement agreement to increase the number of acres). As I’ve said before, settlements are of concern in other areas to the extent that some folks in a nearby city want them run by the public before they are finalized, so it’s not just me, and it’s not just about this.
Yes, it appears to me that DOJ the FS and AWR went into a room and decided the outcome, which put them at an advantage over others.
If DOJ does not want to defend, they get to say that and err… not defend. Which they do. I’ve been in those meetings. Agreeing to defend and then not trying very hard I think would be unethical, but that’s not what you are saying, I don’t think.
There is a body of literature around the “sue and settle” tactic, which I’m not sure this project has a high enough profile to be an example of.. but the thoughts are out there.. even in the minds of law profs.https://news.bloomberglaw.com/us-law-week/sue-and-settle-tactics-that-circumvent-law-set-a-bad-precedent
I actually don’t have a dog in this fight in terms of how many acres.. they tried to do a big gulp project and settled. For all I know they made the project larger knowing it would be litigated to give them more wiggle room during settlement.
If we go to EPA’s definition of EJ https://www.epa.gov/environmentaljustice/learn-about-environmental-justice
“Environmental justice means the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment so that people:
are fully protected from disproportionate and adverse human health and environmental effects (including risks) and hazards, including those related to climate change, the cumulative impacts of environmental and other burdens, and the legacy of racism or other structural or systemic barriers; and
have equitable access to a healthy, sustainable, and resilient environment in which to live, play, work, learn, grow, worship, and engage in cultural and subsistence practices.
Meaningful engagement means:
providing timely opportunities for members of the public to share information or concerns and participate in decision-making processes;
fully considering public input provided as part of decision-making processes;…”
It doesn’t sound like we can document that the folks in the settlement meeting “fully considered public input” as part of their process. That hasn’t been my experience with those discussions but others may well have different experiences.
On the other hand, I don’t know why these discussions couldn’t be public so we could see for ourselves how public input is considered, similar to the objection process.
Yes, the sue and settle thing. Sometime that can be a good thing. On our forest we got sued and lost, but now we have a lot more people at the table and a DR that says he has a fantastic relationship with the group that sued. (If we had only listened to them from the beginning.) And this is an instance where many internal and external people wondered why the DOJ was defending the FS action when they lost just a few years earlier for almost the exact same circumstance (different Region and state, but same facts.) So I wonder.
Yes, behind the door settlements concern me too. It is hard for institutional learning if only a small group knows the settlement facts.
The last statistic I saw, the FS vs the outside world was pretty close to 50/50 win/lose. So I don’t think anyone has an advantage, but as an agency a lot to learn 🙂
When I was involved in litigation, we only got helpful hints directly from our own OGC folks and from national calls.. they didn’t want to write down “lessons learned” because other folks could get hold of it. Hopefully this has changed.
At one time when I worked in DC our boss wanted us to write a paper for forests on “when NEPA applies” .. it was like pulling teeth to get the attorneys to help. Their view was that we should just ask them every time.
Needless to say, this was a very different cultural norm than in silviculture where people who know more about stuff write things down to share with those who know less.
I’ve sat in meetings with OGC and DOJ and often lawyers, just like anyone else, don’t agree with each other. There are many considerations, circuits, precedence and so on..and how much they listen to OGC (who knows more, even if they disagree with each other). When you think about “the system” the 50/50 sounds good, but I bet the statistics don’t include settlements. Seems like those would be great for law students to study.
“My point is about justice. Some people’s views count much more than others, apparently.”
This is not exactly a startling revelation about our economic system. If it produces an occasional result that favors the environment, that hardly puts a dent in the overall state of (in)justice.
Anyway, like most settlements we see, this one is about process, and the public will have plenty of opportunity to weigh in when the Forest Service decides to try again to get the process right. I’m not sure what the value would be of public opinions on proposed settlements that aren’t constrained by the DOJ determination that, “if we do that we will lose in court.”
I appreciate the discussion here. I would like to add that the attorneys could technically be volunteering or working pro bono. But in reality, they do quite well, anytime they win on any point or portion of a case they get their attorney’s fees paid by the taxpayers at $300+ an hour. https://www.capitalpress.com/opinion/columns/commentary-western-communities-lose-as-environmental-groups-reap-millions/article_b41f2324-5590-11e9-8d20-837dcf81fb12.html
Hi Matt: Or even $500 or $600/hour! This racket has its roots in NEPA, ELI, and the ESA but didn’t hit full stride until the early 1990s when the Center for Biological Diversity, Sierra Club, and the Audubon Society discovered a loophole in the Equal Access to Justice Act (EAJA) that required taxpayers to foot the bill for anti-forest management lawsuits by these wealthy “nonprofits” and their regional cohorts: http://nwmapsco.com/ZybachB/Reports/20240401_ONRI-HCP/EAJA/Baier_2012.pdf