Litigation

Forest Service Litigation-Behind the Scenes II: Should Secretary of Agriculture Adopt EPA Transparency Guidelines?

by

It turns out that other folks have noticed the problem of lack of transparency in government settlements, and also the idea that other people should have time to weigh in to these settlements. These include more powerful entities (compared to FS employees and retirees) like States, specifically in dealing with EPA settlements and the problem of “Sue and Settle”. I definitely think that the transparency approach would be worth considering for Forest Service cases. It would help take care of the previously identified problems of “who is in the room”, “good solutions may not have been on the table” and “understanding broader impacts of a settlement.” Here’s the link to the directive:

To promote transparency and public participation in the consent decree and settlement agreement process involving lawsuits against EPA, the Agency shall follow the procedures set forth below:

(there are more but the below are the key ones for the FS)

8. EPA shall post online for review and comment by the public any proposed consent decree lodged in federal court or draft settlement agreement to resolve claims against the Agency. EPA shall also publish a notice of the lodging of the proposed consent decree or draft settlement agreement in the Federal Register.

a. When posting the proposed consent decree or draft settlement agreement on EPA’s website, the Agency shall explain: (1) the statutory basis for the proposed consent decree or draft settlement agreement; (2) the terms of the proposed consent decree or draft settlement agreement, including any award of attorney’s fees or costs and the basis for such an award; and (3) where applicable, the Agency’s plans to meet deadlines in the proposed consent decree or draft settlement agreement, including the identification of necessary milestones and a demonstration that the Agency has afforded sufficient time to modify its proposed rule if necessary, provide notice and comment on the modified proposal, and conduct meaningful Agency consideration of the comments received on the modified proposal.

b. EPA shall provide a public comment period of at least thirty days, unless a different period of time is required by law.

c. EPA may hold a public hearing on whether to enter into the proposed consent decree or draft settlement agreement.

d. Based on the timely public comments received, EPA may seek to withdraw, modify, or proceed with the proposed consent decree or draft settlement agreement. If the terms of a consent decree or draft settlement agreement are modified, EPA shall follow the process set forth above.

9. Where appropriate, I reserve the right to exercise my discretion and permit EPA to deviate from the procedures set forth in this directive. In no circumstance, however, will I permit the agency to violate its statutory authority or to upset the constitutional separation of powers.

10. This directive is intended to improve the internal management of EPA and does not create a right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, EPA, its officers or employees, or any other person.

What do you think? Would you sign this or tweak it if you were the Secretary? I haven’t seen too much in the press that is against this idea substantively.

Forest Service Litigation-Behind the Scenes: I. Settlements, Policy and Public Comment

by

In this series of posts, I’m going to talk about what it was like for me to be a Forest Service employee involved in litigation, and how that experience leads me to this claim: that for many, if not most, projects and land management decisions, making decisions via the court system is suboptimal.

I’m not saying litigation of federal decisions is a bad thing. Separation of powers is something I think is a good idea. I don’t think people who do it to affect policies are bad people. People all have policy goals and use different tools to achieve them. If you’re a politician you use legislation, if a lawyer you use law, if a scientist you use science. I just don’t think the system works as well as it could for land management decisions.

A few weeks ago, I was in Montana giving a talk to a group of folks interested in collaborating with the Forest Service and veered onto the topic of “how FS litigation works.” Some were surprised and a bit horrified/depressed when I said “during settlement, often no one is in the room (or on the phone) who has read the public comment.” They didn’t realize that after the Forest Service goes through one or more public comment processes, using citizens’ time and money as well as taxpayers’, when the deal is being done, no one in the room or on the phone may have actually seen it. I think that this is important because I think that knowing what people think (even if they disagree, and of course they do) is key to making good federal decisions. At least in a “response to comments,” people get a chance to understand the agency’s rationale for not picking their approach. Not that “it wasn’t considered because no one making the decision was aware of it.”

Sometimes these settlements set precedents that are bad policy (in mine and others’ view). They settled the particular case, for example, but the next time a similar project came through, our attorneys said “you have to do this, or can’t do that, because the case law says so.” Not because a statute (voted on by elected representatives) or regulations (agreed to by the executive branch, selected by the voted for President, and including required public comment), said so. Of course, DOJ is also part of the executive branch, but their role in establishing policy, instead of the involved agencies, is contested.

But don’t believe me, I was just a humble Planning Director, with litigation being one of our staff’s multiple and variegated responsibilities. Here is what Chief Jack Ward Thomas had to say:
“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.”

Again, I am not ascribing bad motives to anyone. The system is probably such that DOJ needs to close cases to meet their performance metrics. Whoever designed the performance elements didn’t make them apparently a joint maximization function among the affected agencies. Also, in my experience, settlements can develop a head of steam and it’s hard for someone to say “wait, let’s think about the potential impacts of this on (related projects)”.
Here’s a more gentle (I was still working then) post on the same subject from 2011.

Litigation Weekly Nov. 3

by

Litigation Weekly Nov 3

Annual operating instructions for four grazing allotments on the Salmon-Challis NF complied with the INFISH aquatic strategy in the forest plan.  (D. Idaho)

New case

The NOI questions compliance by the Sawtooth NF with conditions from previous ESA consultation on livestock grazing in the Williams Creek allotment regarding effects on listed fish species.

Light and Heat and BBER (II): What Do the Numbers Say?

by
Table 1: Number of Cases, Attorney and EAJA fees by NFS Region, 2003-2013

Claim 3. Not just BBER, but other studies have shown that R-1 has an unusually high level of litigation on vegetation management projects.

This seems to be due to the activities of a relatively small number of groups.

Of the 133 R1 cases in past 11 years, the majority (75) were by repeat litigants, with 30 cases filed by the Alliance for the Wild Rockies (AWR), 19 by the Native Ecosystems Council (NEC), 8 by the Lands Council, 5 each by the Ecology Center, Friends of the Wild Swan, and Swan View Coalition, and 3 by the Wild West Institute.

So here are some hypotheses:
(1) R-1 is home to a number of groups who have chosen litigation as a policy strategy.
(2) They are selling more timber than other Regions (this could be checked).
(3) They do a poorer job than other regions in being legally defensible (I doubt this based on the people I know who work there).
(4) They have more endangered species, which provide additional legal hooks.

Does anyone have additional hypotheses?

To examine these possibilities, it would be interesting to compare R-1 and its neighbor R-6, or even a couple of forests in northern Idaho and eastern Washington.

Claim 4. Litigation has a significant impact on the region’s a) timber program and b) ability to accomplish other vegetation management objectives (e.g., fuel treatments.)

Here’s what BBER says:

“Also, 54% of the timber sale volume (226.5 MMBF) and 64% of the acreage (35,485 cruised acres) was litigated, with over one-quarter of projects not under CE being litigated.” and “A regional timber program summary based on litigated volume in each R1 forest and program unit costs indicated that almost 54% (164 MMBF Scribner) of the Region’s FY 2013 timber program volume and 39% (114.6 MMBF Scribner) of the FY 2014 timber program volume were encumbered by litigation.”

Nevertheless, as Matthew has previously posted here, R-1 continues to meet its timber targets (although if we look at 2012 to 2016, we get 75% 64% 99% 101% 73%) . Someone else could say “out of the past five years, R-1 missed their target by 25% or more three out of the five years).

But let’s accept that R-1 is generally doing a great job of meeting timber targets and yet has lots of litigation that has an impact on their abilities to do this work as well as other work. How can both things be true?

It appears that R-1, in response to its situation of litigation, has evolved a strategy for meeting targets that puts more sales into the pipeline with the assumption that a bunch of them will be held up. This strategy is more successful in some years and not as much in others, as you would expect given the lurching progress of different litigation timelines. Neverhtess, it is a generally successful strategy.

Is it a problem or not?
Employees, retirees, elected officials, Montana citizens and citizens of the rest of the country can be of different minds about it whether there is a problem in R-1 (and elsewhere) and what to do about it. Personally, I wonder if FL groups should have that much power over what happens on public land, compared to other citizens and elected officials who are accountable to citizens. It seems like a good gig for them, but not so much for the rest of us.

On the BBER Study and R-1 Forest Service Litigation (I): Turning Down the Heat, Turning Up the Light

by
Thanks to Matthew, here is an appropriate Flathead purchaser. F.H. Stolze Land and Lumber Company

The University of Montana Bureau of Business and Economic Research (BBER) looked at some Region 1 projects, chose a case study, and tried to quantify the impacts to communities and to the Forest Service in this 2015 study. We have discussed it on the blog before, but it’s of current interest because the findings have been discussed in the current heated debate over wildfire funding legislation, and possibly taken out of context. I think with all the experienced folks on this blog, we ought to be able to jointly and civilly parse this out, and possibly be of help to journalists and congress folk and their staffs. Folks from BBER and those who heartily disagree with them are equally invited to chime in.

This will be a series of posts, and in each one we’ll examine some claims and evidence from the BBER study. Today we’ll start with two that are probably the most contentious.

I’ll put on my science policy nerd hat here..this doesn’t seem like a topic that has gotten enough study relative to the importance of the issue- BBER did only one case study, funded by R-1 (not the research branch of the Forest Service). It’s only one case study, and we can ask the question- in 2015 these topics were raised, why was more not done? So we have to hold both ideas at the same time “it’s only one case study” and “it brought up questions that deserve to be further explored.”

Claim 1.The biggest impacts of this litigation are to communities. Slowing, not stopping projects also has economic impacts.

“Economic impacts to communities – in jobs, labor income, federal, state, and local taxes – are identified as the largest potential impacts of FS litigation (potentially exceeding $10 million and 130 jobs for the SBR project alone), particularly when timber harvesting and other land management activities that create or maintain private employment and generate wages and other taxable revenue are reduced, delayed, or completely forgone as a result of litigation.”

“Even if agency personnel were not spending effort working on these cases each day cases were open, the duration of most litigated cases was over multiple planning and budget cycles, making resource management and financial decisions very difficult for the FS, mills, loggers, and forest-dependent communities in the Region.” (my italics)

Note: I think what this is getting at is that $ comes around on an annual basis for agencies and when the litigation is finally finished, the unit may not have the funds to actually implement the project. This is an angle that perhaps needs to be discussed more, and may have potential (internal FS) solutions through the (internal FS) budgeting process.

Claim 2. We don’t know the impact in terms of costs to the federal government. You can’t estimate costs of DOJ and OGC (the lawyers and their support) because (don’t collect or won’t give you) the information. BBER did look at costs of FWS and FS employees. There are also opportunity costs for what else FS, FWS, OGC and DOJ employees could be doing instead of R-1 vegetation project litigation.
“Findings show that litigation costs of the SBR case (one case study) to the FS (over $95,000) and FWS (over $4,500) exceed attorney fees and Equal Access to Justice Act (EAJA) payments (none in this case) made to plaintiffs and/or their attorneys. This finding is significant because: 1) previous studies have used attorney fees and EAJA payments as the sole measure of litigation cost, 2) attorney fees and EAJA payments are made in less than 20 percent of recently litigated FS and R1 cases, and 3) the SBR case study does not fully quantify the Regional impact of litigation. “

Note: I have a question in with DOJ public affairs asking why cost information is unavailable. To quote Fred Norbury, Director of Ecosystem Management in the WO for the Forest Service during the Analysis Paralysis days “How can we say it takes too long and costs too much if we don’t know how long it takes or how much it costs?” He was talking about NEPA and project planning, but the same could be said for litigation. Another argument for giving this topic more attention and funding.

Litigation weekly Oct. 27

by

(nothing received for Oct. 20)

Litigation Weekly Oct 27

The district court upheld the Kootenai and Idaho Panhandle NF 2015 revised forest plans with regard to management of recommended wilderness areas, but the Kootenai planning process failed to provide for adequate public comments on recommendations to designate two river segments (D. Mont.) Also discussed here.

New cases

A preservation group and two ranches challenge the Modoc NF’s failure to remove excess wild horses as required by the Wild Free Roaming Horses and Burros Act and a territory management plan (E.D. Cal.).

This case concerns the Moose Creek Vegetation Project on the Helena-Lewis and Clark NF and the Healthy Forest Restoration Act Montana designations (D. Mont).

 

Case on forest plan wilderness recommendations

by

Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

Another September case

by

Wild Wilderness v. Allen seems to have not shown up on the Forest Service litigation reports, but here is a newspaper version.  On Sept. 8, the Ninth Circuit found that the decision to build the Kapka Sno-Park, a parking lot for snowmobile users on the Deschutes National Forest, was consistent with the forest plan and did not require an EIS.  I found a couple of points interesting.

One was the court’s treatment of forest plan “standards and guidelines” that were prefaced with language indicating discretion.  The court said, “But nothing in this provision mandates closure of any area to motorized use. It merely outlines steps that “will generally be taken” in the event of user conflicts. The Forest Plan outlines “an aspiration, not an obligation” and therefore “there is no law for us to apply in second-guessing the agency.””  It similarly dismissed language from the Recreation Opportunity Spectrum as “nonbinding guidance.” Note to the public participating in forest planning – if the plan doesn’t say “must” or “shall” the Forest Service won’t have to.  (Recreation, unlike wildlife, doesn’t have any substantive requirements that a plan must meet using mandatory language.)

On the NEPA side, the court held that the forest didn’t have to explain why it changed from an EIS to an EA, as long as it justified the EA.  It rejected the comparison “to cases in which agencies failed to provide reasoned explanations for changes in their position on matters of policy or factual findings.”  The court stated, “The Forest Service here, however, never changed its mind on any factual or policy matter but only on how it planned to comply with its own procedural requirements. There was no agency decision to reverse, as a draft EIS is not an agency decision at all.”  An EIS is not a decision, but this holding only makes sense to me if an EIS also does not represent a finding that there are significant impacts, which is would be a “factual finding.”  In fact, an EIS may be prepared by an agency even if effects are not significant, so changing from an EIS to an EA doesn’t necessarily trigger an additional burden of explanation for the agency.

Litigation bi-weekly October 6 & 13

by

Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.