Litigation

Settlements: Behind the Scenes I

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settlement I’ve been remiss at keeping up with some things.. One is moving things from the “new topics” tab to this area, so that more people can see them and weigh in. So here’s this one:

Laura Jackson asked:

“I would just really like to know, if anyone capable can honestly say, why the USDA Forest Service settles in some natural resources-oriented litigation when they have a chance to really prevail. Perhaps it is to save taxpayer money, which is a good, sound reason. Or perhaps, plaintiff’s know that more losses will be damaging to their cause…so they try to settle, and generally succeed due to the USFS wanting to save time and costs. The savings to the Public is the only valid reason I can think of to settle. But perhaps those who participate more regularly in this blog- those with a smidge more legal expertise- can enlighten me and other readers. No case or cause in particular, just an observation of late. Thanks!”

Larry said:

I’m sure that one of our legal experts can verify this but, it seems like the Forest Service reaches a settlement only when they have already lost in court. I also think that a winning litigant could decide not to enter into settlement proceedings, preferring the court to decide what the Agency can, and cannot do, under the decision. I’ve seen the Forest Service have to pay undocumented legal fees for the Plaintiff, too, in those settlements. I’d like to see FULL transparency in such matters, myself.”

Jon Habersaid:

““They” is the Department of Justice. They settle when they become convinced they are likely to lose. That may be obvious at the outset from the complaint, and they tell the FS to withdraw the decision. It may happen after a preliminary injunction goes against them, which often tips a judge’s hand. Sometimes it is after a court decision to agree on the relief, rather than risk what a court would decide. Or anywhere in between. Cost (and resources) is a consideration in how much risk they are willing to take and how long they stay in the game. And you can’t rule out politics and changing administrations as being a factor in some cases.”

Laura said:

Thanks Larry and John – I should have been clearer. I was mostly referring to instances where the Forest Service (or other Government agency) had already prevailed in a lower District court (e.g., not had any injunctions issued/already been granted summary judgment) but was still waiting for an appellate court to hear Plaintiff’s appeal of the lower Court’s ruling and issue an opinion. I’m guessing that Plaintiff and the Government choose/chose to settle in those instances to save time/taxpayer funds…or perhaps the issues the Government is being ‘sued’ over are no longer viewed as worthwhile arguments by the Plaintiff(s), and they don’t want to waste their own time or contributor funds. Or perhaps they don’t want the potential case law that could result. Regardless, it seems like the agency(ies)/DOJ would be better served to not settle and to allow the follow-through to occur at the appellate court level. Again, thank you for the feedback…”

Sharon says: I think there must be an incentive for settling (closing a case) other than simply crossing it off the list, but since everyone is busy, maybe that is enough incentive. Because lawyers like to settle, and the idea of settling seems to have its own momentum. Going court takes a lot of time and effort. This is a very rational approach from the bureaucratic perspective

I have seen very silly settlements (IMHO) e.g., “we’ll do more NEPA next time.” My opinion is that lawyers and a couple of others on a conference call is not a good way to make public policy. It seems pretty ironic when a small group decides something when the law is all about the public being involved in decisions.

Sometimes DOJ works with the forest to settle a case, but the route they take makes bad case law for everyone else. This sometimes happen because folks from the Regional Office or the Washington Office who are in that program (say recreation or timber) are not invited to the calls that help decide what happens. Sometimes it’s because they aren’t listening to those voices. Sometimes it’s because of differing views of risk among DOJ, OGC, the forest, and everyone else who has the same program. For example, forest “A” does a mildly questionable job of doing “x”, say 30 pages of analysis. Plaintiff will settle if forest “A” does 100 pages. However, they can settle for doing more work than everyone else does, But since no one in the room (or on the conference call) knows what everyone else does, it is apparently easy to ignore in the rush to settlement. In this example, prior to this case, everyone else was doing 50 and it was fine. So effectively the policy is changed (everyone must now do 100 because of this settlement) without analysis of the impacts (ironically?).

Anyway, that’s just one experience. You might also look at this post on what Chief Jack Ward Thomas said about settlements. I think things probably work the same way now.

Tongass roadless rule exemption: facts matter

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The Ninth Circuit has reversed the exemption of Alaska from the Roadless Area Conservation Rule.  The case highlights some limits on the role of politics in agency decision-making.

While the dissent correctly asserts that “elections have consequences,” so do facts.  While Congress may choose to ignore them, the administrative and judicial branches may not.  The Ninth Circuit en banc review found that the Forest Service failed to explain why it ignored factual findings it had made under the previous Administration.

“Thus, contrary to the contentions of both Alaska and dissenting colleagues, this is not a case in which the Department—or a new Executive—merely decided that it valued socioeconomic concerns more highly than environmental protection. Rather, the 2003 ROD rests on the express finding that the Tongass Forest Plan poses only “minor” risks to roadless values; this is a direct, and entirely unexplained, contradiction of the Department’s finding in the 2001 ROD that continued forest management under precisely the same plan was unacceptable because it posed a high risk to the “extraordinary ecological values of the Tongass.” 66 Fed. Reg. at 3254. The Tongass Exemption thus plainly “rests upon factual findings that contradict those which underlay its prior policy.” Fox, 556 U.S. at 515. The Department was required to provide a “reasoned explanation . . . for disregarding” the “facts and circumstances” that underlay its previous decision. Id. at 516; Perez, 135 S. Ct. at 1209. It did not.

“The 2003 ROD does not explain why an action that it found posed a prohibitive risk to the Tongass environment only two years before now poses merely a “minor” one. The absence of a reasoned explanation for disregarding previous factual findings violates the APA. “An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.” Fox, 556 U.S. at 537 (Kennedy, J., concurring).”

An agency has some explaining to do when it changes its mind, and that is going to be problematic if the underlying facts haven’t changed.  The Forest Service should think about that when it contemplates finding (under the new planning rule) that species it had classified as sensitive because of risks to their viability do not qualify as species of conservation concern because of lack of concern for their viability.

Court takes an interest in habitat connectivity – so should the Forest Service

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Connectivity is a new buzzword in the 2012 Planning Rule. It is part of the requirement for ecological integrity, but the Forest Service seems reluctant to fully embrace it in its early revision efforts under the new rule.

On June 25th, the Arizona District Court invalidated a Forest Service grazing permit on the Coconino National Forest because the U. S. Fish and Wildlife Service failed to consider effects on habitat connectivity in areas designated as critical habitat for the Chiricahua leopard frog. The judge held (in Center for Biological Diversity v. Branton):

Viable dispersal corridors are needed to ensure that the Buckskin Hills can sustain a functioning metapopulation: without them, CLFs would be unable to spread from one stock tank to another, and would be unable to recolonize a stock tank should its local population die out (record citations omitted). Accordingly, adverse modification of the dispersal corridors would “appreciably diminish the value” of (the critical habitat unit). In short, the 2013 BiOp’s failure to account for the maleffects of livestock grazing in dispersal corridors renders its conclusion that the Proposed Action “should not significantly reduce or modify” PCE 2b (record citation omitted) arbitrary and capricious.

This was a project decision involving a listed species and critical habitat. However, the principles of metapopulation dynamics it recognizes should be equally applicable to NFMA requirements that forest plan components provide ecological conditions necessary for viable populations.   This opinion suggests that, where connectivity is necessary for an at-risk species, and where information about the connectivity value of specific areas is available, their locations should be identified in the planning process and probably given special protection by plan components.

In this case, a requirement in the forest plan to apply specific conservation measures to dispersal corridors might have saved this project. Moreover, fixing this project would not prevent the same thing from happening on other projects. This suggests that the Forest Service should amend the plan (which would be subject to the 2012 Planning Rule requirements for viability), or at least reinitiate consultation on the forest plan on critical habitat for this species (based on new information about effects – but wait – this is the 10th Circuit, where that is not required.) What should the Forest Service do?

FYI – Here’s what Defenders of Wildlife thinks the Forest Service should do about connectivity in its forest plans.  (I suppose I should explain that I did the work on this document on a contract, and that I contribute to this blog on my own time, so that I am not intending to represent the views of Defenders of Wildlife here.)

Beaverhead-Deerlodge Forest Plan NEPA not site-specific enough

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The Ninth Circuit Court of Appeals reversed the decision in the Beaverhead-Deerlodge (B-D) National Forest’s revised forest plan to designate areas for use by winter motorized vehicles. It found that the forest plan EIS failed to provide analysis that was site-specific enough to make an informed decision, as required by NEPA, and that the planning process did not comply with the “minimization” requirements of Executive Order 11644 for off-road vehicles, including evaluation of specific areas open to motorized vehicles.

This was a rare loss at the forest plan level on a NEPA issue.  While courts often accept more general NEPA analysis for programmatic decisions, this court recognized that the essence of forest plans is land allocation decisions.  Here it was important to know where winter range was in order to consider how the plan affected it or to propose alternatives for it.  The court stated that, “Without data on the location of the big game winter range, the public was severely limited in its ability to participate in the decision-making process.”  This principle should be applicable to other wildlife issues in plan revisions.

The holding on motorized use may also be precedent-setting.  It found that the plan ‘designated’ ‘areas open to snowmobile use.’  That made it subject to the executive order and to the Travel Management Rule (TMR) the FS adopted to implement the executive order.  The court stated, “What is required is that the Forest Service document how it evaluated and applied the data on an area by-area basis with the objective of minimizing impacts as specified in the TMR.”  It held that the Forest Service had instead deferred that level of analysis to subsequent travel planning.  The B-D plan had more site-specific direction for motorized use than many plans would have, but this holding could arguably apply to any forest plan components that identify areas in which motorized use would be allowed (especially where it is already occurring without prior compliance with the TMR).  This opinion blurs the distinction between forest planning and travel planning that the Forest Service has tried to maintain.

Forest Service Must Re-initiate Consultation With USFWS on Lynx

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This looks to have far-reaching effects on those National Forests within the “core habitats”. This looks like a forced settlement situation, where the Forest Service will probably pay dearly for their loss in court.

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/13-35624.pdf

Interesting:

Although the court granted summary judgment to Cottonwood and ordered reinitiation of consultation, it declined to enjoin any specific project.

Sleeping With the Enemy?

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high-intensity-burn-web

Timber industry people who don’t trust forest collaboration believe that those of us who participate in collaboratives are sleeping with the enemy. Environmentalists who would rather sue than participate in collaboratives think that environmentalists who collaborate with us are sleeping with the enemy. So it’s unanimous. We’re sleeping with our enemies. I don’t care what our critics think. Collaborative groups, ours included, are solving political problems that should never have become political problems, and those problems are the reason why our forests are dying and burning before our very eyes. So if you really want to know what collaboration is all about, it’s about protecting forests from the ravages of nature, not just for our benefit, but also for the benefit of future generations.

Duane Vaagen, Chief Executive Officer
Vaagen Brothers Lumber Company, Colville, Washington

http://www.evergreenmagazine.com/forest-collaboration-in-northeast-washington-part-1-duane-vaagen/

Larry’s note: Sent to me from a reader, this points out the, maybe, necessary mistrust at this part of the collaborative journey. We need all sides to embrace full transparency, so that the public at-large can more accurately form a better-educated opinion of the compromises that might work, for those site-specific conditions. I do think that the tables are turning, in favor of more active management and stewardship. I do think this summer’s fire season might convince a few more people, too.

Neighbors and Idaho Rivers United File Suit on Forest Service Road Use by State

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Couldn't find a photo of the area, this is from the Johnson Bar fire which is somewhere close.
Couldn’t find a photo of the area, this is from the Johnson Bar fire which is somewhere close.

Here are some links to this lawsuit.. Idaho Rivers news release here

Here’s the AP story, below is an excerpt:

Sharla Arledge, spokeswoman for the Idaho Department of Lands, said the Selway Fire Salvage Timber Harvest was scheduled for April 24 but was postponed after the state agency couldn’t reach an agreement with the Wrights when they expressed concerns about the plan. Arledge said the department is considering its options.

Department officials estimate the sale on about 167 acres would produce nearly 7 million board feet of timber and bring in about $1.7 million to the endowment fund that supports Idaho’s public schools.

The lightning-caused Johnson Bar Fire burned more than 20 square miles last summer and fall, mostly on Forest Service land but also on state endowment land. The department said there is no Wild and Scenic easement on state lands in the area where the logging is planned.

Specifically, the lawsuit seeks to reverse the determination by District Ranger Joe Hudson that Forest Road 652 is public. If it’s not public, that means the Department of Lands would have to obtain a special use permit from the Forest Service, according to the federal agency’s regulations, the lawsuit said.

Issuing such a permit, the lawsuit noted, would require the Forest Service to conduct an analysis of impacts on the scenic river corridor as required by the National Environmental Policy Act and the Wild and Scenic Rivers Act.

The lawsuit contends that the road is maintained by the Wrights to their home, but then becomes a dirt track that’s not maintained. The lawsuit also said that a 2007 road access guide for the Nez Perce National Forest doesn’t list 652 as open for motor vehicle use.

“This case is really about process,” said Laird Lucas, an attorney at Advocates for the West who is representing Idaho Rivers United. “It’s about holding the Forest Service accountable to its own laws and regulations.”

Really, it’s about process? Because it sounds like it might be about people living in WSR corridor (conceivably with some environmental impacts) that don’t want logging and log trucks around. I wonder whether the folks could just write a check to the Idaho schools for the $1.7 mill and end up saving themselves and the USG money.

The headline on Court Newshouse here is “greens fight clearcutting in Idaho.”

NFS Litigation Weekly May 26, 2015

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It took more than the allotted time to extract paragraphs from this pdf and reformat, so I just left the Newsletter as is, in pdf 2015_05_26 NFS Litigation Weekly, with the following associated legal documents.

20150507OrderConservationCongress_v_George_KelseyPeak

20150511ComplaintAWR_v_SavageEastReservoir

20150511NOI_EastDeerlodgeProject

20150512MotionToReconsiderFFRC_v_Vilsack2012PlanningRule

20150513NOI_AdvocatesForTheWestGrazingFremontWinema

Court Rules In Favor Of Rim Fire Logging

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Coincidentally, this on the Rim Fire litigation..from a local paper..here is the link and below an excerpt. No need for photos, thanks to Larry!

Sonora, CA — Yesterday, the U.S. Court of Appeals nixed an argument by a group of nonlocal environmentalists that Rim Fire recovery logging threatens spotted owl habitat, effectively removing a potential log-jam to current clean-up efforts.

According to Stanislaus National Forest spokesperson Rebecca Garcia, “The Ninth Circuit Court ruled in favor of the US Forest Service on the Rim Fire case, and so the U.S. Forest Service, the Stanislaus National Forest will continue forward on the Rim Fire recovery efforts.” She adds, as far as the work being done, “Nothing had never stopped. The litigants had appealed to the courts back in August to get a stay to try to halt the work…out on the landscape…while they were putting together their case. But that was not granted and work has continued…until weather did not allow it…and it started up again this spring…and will continue as long as the wood is good.”

The court’s decision, which was filed in San Francisco Tuesday, leaves the plaintiffs, the Center for Biological Diversity, Earth Island Institute and California Chaparral Institute a final option: to see if the Supreme Court will hear their case. That route is both uncertain and likely to take more months than the planned scope of recovery efforts. The Ninth Circuit judges indicated in their decision that the plaintiffs had not established a likelihood of success on the merits of their claims under the National Environmental Policy Act. Additionally, the judges indicated that the Forest Service had re-established six protected activity centers where surveys detected owl presence; and accurately addressed the scientific literature on owl occupancy in post-fire, high-severity burn habitat.

Here’s to all the folks who worked on this case!!!

Rim Fire Images

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The media does like to sensationalize events like the Rim Fire, often implying that the lands have been “destroyed”. The Rim Fire is so huge and burned across so many differing kinds of vegetation that you cannot summarize too much. Even my own “sampling” from the access roads doesn’t cover very much of the impacts and effects of a 250,000 acre wildfire.

Much of the wildfire burned in plantations generated from previous wildfires. Here is an example of one of those plantations that wasn’t thinned. I can see why it wasn’t but, maybe a “pre-commercial thinning” kind of task could have been included into one of the other commercial plantation thinning projects that I worked on, back in 2000.

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In the same area were blocks of land that were left for “Mother Nature”, after the early 70’s Granite Fire. Here is what a 40 year old brushfield looks like. Those blocks are choked with deer brush, whitethorn and manzanita, with very few conifers, and fewer oaks than the “natural stands” (as they called the unburned portions).

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As you can see, sometimes there is a fine line between a total plantation loss and one that has survived a wildfire. This is one of the thinned plantations, near Cherry Lake.

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Here is another example of an “old growth” brushfield. While this one didn’t burn much, there are many examples of them burning at moderate to high intensities. Looking at Google Maps, I can find examples where the flames from the brushfields were pushed into the thinned plantations. The Forest Service should be treating those old brushfields with prescribed fire, instead of “whatever happens”.

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This unburned stand, within the fire perimeter, is a good example of the work we did back in 2000. I don’t really know of any other reason why this large patch, near Cherry Lake, didn’t burn

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The Clavey River, long-cherished by the local eco-community, acted like a conduit for the Rim Fire, as it burned so many acres in just one day. However, you can see that the intensity and damage is rather minimal. There is a fork in the river, down there, and the main fork of the fire went up that way, finding more conifers to burn. (It also found the big block of Sierra Pacific Industries lands.) I found it very interesting that the isolated pockets of Douglas-firs had very high mortality, but only a low-to-moderate intensity.P9206804-web

Here is one of those pockets, alongside the Clavey River. In the past, this kind of pocket would be thrown into a large helicopter salvage project.

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