Thanks to everyone, this has generally been a great discussion so far. Some themes and topics have come out that deserve their own space. I’ll start with my favorite- the People’s Database.
I. This Should All Be Public and Easily Available
When we started the PALS Database in the Forest Service WO NEPA shop(part of the E-gov initiative)(probably the early 2000s), the acronym stood for Planning, Appeals and Litigation Database. Our intention was to build out the NEPA piece, as well as appeals (and objections) and litigation, and after testing and refinement, make it publicly available.
Let’s go back to our Colorado health policy op-ed:
And far too often, our debates start from clashing assumptions instead of shared facts.
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And we need decisions rooted in shared, validated data rather than ideology or assumptions.
Perhaps if we are to figure out where we really disagree and what can be done about it, we should start with asking the Forest Service to provide us with validated, public data. So I went through the comments from yesterday and pulled the questions that could be answered with the People’s Database.
1. Sam said “I haven’t seen a whole lot of litigation against thinning projects in the Sierra Nevada. The few lawsuits (against thinning) in the courts over the decades have not been very successful.”
Database would include project, purpose and need, litigation, plaintiffs, dates filed, dates appealed, date settled,data project began, link to court documents, (probably other info of interest to legal folks.) Then we would know.
2. The Black Hills. I vaguely remember an amendment to the Forest Plan being required as part of a settlement agreement. So there must have been some litigation? Again, we would know from the People’s Database how many lawsuits had been brought on the Hills over time.
3. Dave said ” I would really like to see the stats of how many projects in the last year or two have been covered by Emergency Action Determination. I am going to guess that it is a majority. Maybe some lawsuits could be prevented if the Forest Service did a better job at resolving issues during the objection process.” We could easily see that if each project was entered and could be searched using that. Probably PALS has that and we could ask.
Denise said “EADs cover well over one million acres at this point maybe two million” but we don’t know. And is that the acres impacted by actions or project areas?
4. Brett said:
The paper from the Breakthrough Institute found a 28% loss rate for NEPA. This compares to Fleischman et al. (2020. US Forest Service implementation of the national environmental policy act: Fast, variable, rarely litigated, and declining. Journal of Forestry, 118(4), pp.403-418) which states that; “Of the 241 resolved cases (the others are still outstanding), the USFS won 67 percent, lost 21 percent, and settled 12 percent.” The problem with these numbers is they don’t account for the documents that are withdrawn before going to court. So, the real odds of the Forest Service losing a case is perhaps close to 50:50. And remember all ties go to the Forest Service (we get deference).
So I think the two studies probably differed by timeframes, definitions and maybe kinds of projects. We should be able to do our own analyses (IMHO) and also be able to link to settlements.
Also, Brett, when I read Science at the Bar, I didn’t think Jasanoff said that the courts are the place to resolve conflicts. I’ll have to go back and look. It seems like the political process is where ox-goring is generally decided.
II. Is it Fair to Say “the FS is trying to cut the public out by using CEs?”
I think of the HFRA CEs, for example. Congress established them because they weighed the pros and cons and came up with a tool for the FS to use. Should the Executive Branch say “sorry gals and fellas, we don’t want to use this because we don’t agree with your judgment.” That’s an interesting separation of powers question. Or are we blaming Congress for not caring about public comment? ESD’s were part of the IIJA, Vilsack had one map, the current Sec. another. Again, if Congress comes up with something specifically to help with a problem that it sees, the FS should not use that tool.. because…???
I do think the tenor of this discussion is different, because it tends to blame FS employees (incompetent timber-lovers) instead of Congress or any given Admin or party.
My comment said, “courts are the proper place to argue unresolvable conflicts (see Science at the Bar by Sheila Jasanoff).” I think many forestry issues are wicked problems for a portion of the public and the Agency – meaning both groups can’t see a win-win outcome. As a result, they end up arguing their version of the law in front of a judge.
I agree that many forestry issues are wicked problems.. Dave Iverson wrote this piece in 2011 here https://forestpolicypub.com/2011/04/03/its-complicated-forest-managements-wicked-problems/ and I wrote this more recently https://forestpolicypub.com/2022/04/15/a-new-book-on-wicked-problems-by-professor-brian-head-with-flashbacks-to-dave-iverson/
I think the conversation has been pretty interesting, particularly since we have heard from some people that we don’t normally hear from. If I came across as blaming FS employees, it was not intended that way. If I was in their shoes, I would likely be using all of the tools they have been given, even if I personally had problems with them. The reason for this would be due to the constant pressure to produce.
The Black Hills NF did have litigation over the Forest Plan Revision but that was in the early 2000’s. I stated that the last litigation on the BHNF was in 2011 and that was over a different matter. As far as looking for whom to blame here on the BHNF, I blame segments of the timber industry for continuing the pressure to overcut the Forest when they know better and I blame the Congressional delegations of SD and WY along with the two Governors for their role in making it happen. The Forest is just doing what it has to do to survive and for them to keep their jobs. I blame Congress in general for coming up with authorities that exclude public input and that is not exclusive to one party, they both have had a hand in it. They are our public lands, but their solution to getting more done is to ignore our concerns.
I would love for there to be a user-friendly database with a tons of information so that we can develop informed opinions and provide fact-based comments. But why would they create such a database when the Congress clearly wants to limit the public’s input? What I am hearing and seeing in practice, is that the Agency essentially has a gag order from putting out information, talking with the press and even posting on social media. Pretty much everything has to go through the WO Press Office. Are other people seeing this as well? I do remember a time where this sort of occurred under the Obama Administration, but it did not last long. What I am seeing right now is almost a total lockdown. Why are they doing this? What is the reason behind it?
Hoping for a more open, transparent Forest Service may be lost cause and that is not the FS’s fault. I know they would like to be getting their stories out. It is the fault of the current Administration.
Dave, recently I’ve been dealing with two forests, one had to go through the RO and the other one did not seem to go through the RO (different Region). So my experience has been very good with Forests recently. I have been seeing a bunch of posts on social media from forests about burns for one thing..and about vacancies. So I’m not sure about the “Total Lockdown” concept. In fact, just yesterday I received an answer from a forest
I have wondered if the situation was the same across all the Forests or if there were differences. It appears that there are. Maybe there has been guidance that is being interpreted differently? I have also started to see some posts about burning and vacancies. Maybe things are loosening up and that’s good. Nonetheless, it is evident that things are not like they were in the past. Our journalists here have given up trying to get information/quotes from the Forest Service. Consequently, other people are telling their story for them. They are so hard up that they even come to me every once in while!
Perhaps it depends on the questions that are asked..? I know I’m unlikely to get an answer to “how much money went to the Keystone agreements” and couldn’t get it last Admin either.
OTOH, I got answers to “how many acres are under contract that weren’t enjoined” and “do you consider this project NEPA to be condition-based management?”
“we need decisions rooted in shared, validated data rather than ideology”
Good luck with that under this purely ideological administration. There is not even a pretense of recognizing competing views, and even facts seem irrelevant.
That seems like a fairly generic statement about an Admin with lots of moving parts, agencies, appointees with druthers and all that. And I’ve been bugging all Admins about the People’s Database, so the lack of interest doesn’t seem specific to this Admin.
Maybe I’m going to exaggerate, but all those moving parts (if they are important) have taken a loyalty test for the ideology. And I’d say, where it may have been lack of interest before, now it’s hostility.