Litigation

Science, Law, and the Press: Idealized vs. Real

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I’ve been thinking about how people use the terms “science” as in ” policies are better if they’re based on science”; and law as in “environmental laws are great because Congress made them, but if Congress messes with any of the case-law derived interpretations, that would be bad.”

It’s almost like there’s an idealized institution that people appeal to in some arguments, while sometimes ignoring or downplaying the realities of the institution. I think it will be helpful to talk about in future discussions how that plays out..for example, are Franklin and Johnson’s involvement with prescriptions on O&C lands making it “science.” What if it were two other scientists who developed a different prescription, would that still be “science”? It’s not hard to imagine other ecologist/economist pairs that could come up with other prescriptions.

Now, Congress’s messiness is laid out for the whole world to see through the press. But in my experience dealing with Forest Service projects wending their way through the system, I saw the “real” side of “science” (which I already knew about); the courts, and the press. Now I am not saying that any of them are any worse than any other; but they are all human and not perfect institutions. Human behavior in groups tends to be fairly similar and is not always perfect. When we talk about institutions, then, it seems to me, we should generally be talking about the institution as real and not as idealized.

Now people who are in the trenches on projects and see this firsthand, do not really have a voice. As agency folks, you are not allowed to question (in public) some of the issues or problems you see. For one thing, that might make powerful folks angry at the FS. For example, on one case, one of our attorneys said “we think the judge has the law wrong on this, but we won’t tell him because he is a young judge and we don’t want to have him biased against the FS for his career.” The fact that others critique the FS, but the FS can’t (usually) engage in meaningful public back and forth means that only one side is represented to the public, as we’ve discussed before.

Which also brings up that none of the feedback loops in the table allow for public discussion of claims and counterclaims, as we have on this blog. It’s too time-consuming, perhaps, but not having a place for that to occur seems to me to also be a problem. And we have to look at who is involved in the discussion and how members of the public get involved or not.

institutional feedback 2

I am interested in your thoughts on this table. One thing I thought we might be able to do on this blog, that might be helpful, would be to keep tabs on some of the journals and post relevant information on this blog so that these critiques are more available in the public sphere.

What do you think about the table? What would you change or add? What ideas does the table generate in your mind?

Molloy: “Injunction more likely than project to harm grizzly bear”

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Thank you to an alert reader who found this following up on our recent AWR theme…here’s the link.

HELENA, Mont. (AP) — An on-again, off-again logging project in the Kootenai National Forest may be going ahead after a federal judge refused to delay it during the appeal of a lawsuit that claims threatened grizzly bear habitat would be harmed.

The project, which calls for logging more than 900 acres and burning 2,140 acres, is based on sound science and should not harm the bears’ habitat, U.S. District Judge Donald Molloy wrote in his order Thursday.

“In fact, given the evidence, studies and analysis marshaled by the agencies, it could be postulated that enjoining the project is more likely to irreparably harm the grizzly bear than allowing the project to proceed,” Molloy wrote.

The 9th U.S. Circuit Court of Appeals had issued a two-week block on the Grizzly Project while Molloy was considering the Alliance for the Wild Rockies’ request for an injunction during the appeal of its lawsuit.

The conservation organization’s appeal challenges a previous ruling by Molloy allowing the project to proceed. The group originally sought an injunction from the 9th Circuit, saying the project would likely be completed before the appellate court had a chance to weigh in.

But the 9th Circuit judges ruled the group first had to make the injunction request to Molloy.

Molloy denied the request in his Thursday order. If the project goes ahead, the conservation group will again ask the 9th Circuit to block it, Alliance for the Wild Rockies executive director Mike Garrity said Friday.

The 9th Circuit’s temporary two-week block expires Monday. Quinn Carver, natural resources and planning staff officer for the Kootenai National Forest, said the contractor should not have any impediments to starting the logging project after that date.

Garrity disputed that, saying the Forest Service must first receive the appellate court’s permission to proceed with the project.

The differing accounts could not immediately be reconciled.

I couldn’t find who is the author of this piece, but I feel great empathy for journalists who attempt to delve in to these complexities. And that line is great and honest “differing accounts could not immediately be reconciled.”

AWR Loses Litigation on “Most Innocuous Logging Project”

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flathead IMG_2103

flathead IMG_2102      Thanks to an alert reader for this.  Sounds like the judge shares folks’ annoyance at AWR’s (Alliance for Wild Rockies) selection of litigation projects and behavior.. to summarize:

1) FS responds to AWR and others’ comments by reducing projects.

2) AWR litigates anyway

3) Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.

It sounds like something I would say. In this case, it is hard to argue that AWR is all about making the FS “follow the law”. In fact, it is difficult to understand what it is really about other than the potential power of sitting in settlement meetings and determining outcomes.  Even then, though, some of the dogs AWR is choosing won’t hunt.

  From page 3.  My italics.

This Project is the most innocuous logging project to be challenged in this Court to date. The Project was dramatically reduced in scope following public comment, primarily by the Plaintiffs, from 12,563 acres to approximately 3,650 acres. Only 500 acres will be thinned per year. No roads will be reopened or created for Project use. Only hand trimming will be performed, with hand tools used near bull trout critical habitat. The trees that will be thinned fall far short of commercial size–most are one to five inches in diameter and only a few feet tall.
In short, this Project, compared to the majority of projects that come before the Court, is truly designed to promote and restore forest health, and will benefit the endangered species inhabiting the Flathead National Forest. Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species. For these reasons, as well as the legal analysis to follow, Plaintiffs’ motion for summary judgment will be denied and Defendants’ motion will be granted.

Here’s the whole document:  Flathead Decision.

I checked out who the officers are and here’s a link. If you know any of them, ask the question “why did you pick this one?” I think we’d be curious as to the answers.

Again, I think if a mediation session open to the public were required beforehand this might have been kept out of the courtroom and the resulting waste of judges, lawyers and FS employees’ time.  My previous efforts to understand Mr. Garrity’s point of view and choice of projects can be found here (whitebark pine) and here (Colt Summit). It seems so simple that if folks litigate projects, they should be asked upfront what they hope to achieve and why, without violating “basic democratic principles.”  If they were member organizations, we could join and ask them to become members of the Transparent Litigators Coalition. I like the acronym, anyway :).

Largest “Dealbreaker” Ever?!?

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This may shock some readers but, I am actually against HR 3188. I don’t support any logging in Yosemite National Park, or in the Emigrant Wilderness, other than hazard tree projects. What is also pretty amazing is that others in the House have signed on to this bill. It seems like political “suicide” to go on record, being in favor of this bill. However, I am in favor of exempting regular Forest Service lands, within the Rim Fire, from legal actions, as long as they display “due diligence” in addressing endangered species, and other environmental issues. Did McClintock not think that expedited Yosemite National Park logging would be, maybe, the largest “dealbreaker” in history?

Here is McClintock’s presentation:

 HR 3188 – Timber Fire Salvage

October 3, 2013
Mr. Chairman:
I want to thank you for holding this hearing today and for the speedy consideration of HR 3188.
It is estimated that up to one billion board feet of fire-killed timber can still be salvaged out of the forests devastated by the Yosemite Rim fire, but it requires immediate action.  As time passes, the value of this dead timber declines until after a year or so it becomes unsalvageable.
The Reading Fire in Lassen occurred more than one year ago.  The Forest Service has just gotten around to selling salvage rights last month.  In the year the Forest Service has taken to plow through endless environmental reviews, all of the trees under 18” in diameter – which is most of them – have become worthless.
After a year’s delay for bureaucratic paperwork, extreme environmental groups will often file suits to run out the clock, and the 9th Circuit Court of appeals has become infamous for blocking salvage operations.
We have no time to waste in the aftermath of the Yosemite Rim Fire, which destroyed more than 400 square miles of forest in the Stanislaus National Forest and the Yosemite National Park — the largest fire ever recorded in the Sierra Nevada Mountains.
The situation is particularly urgent because of the early infestation of bark beetles which have already been observed attacking the dead trees.  As they do so, the commercial value of those trees drops by half.
Four hundred miles of roads are now in jeopardy.  If nearby trees are not removed before winter, we can expect dead trees to begin toppling, risking lives and closing access.  Although the Forest Service has expedited a salvage sale on road and utility rights of way as part of the immediate emergency measures, current law otherwise only allows a categorical exemption for just 250 acres – enough to protect just 10 miles of road.
By the time the normal environmental review of salvage operations has been completed in a year, what was once forest land will have already begun converting to brush land, and by the following year reforestation will become infinitely more difficult and expensive – especially if access has been lost due to impassibility of roads.  By that time, only trees over 30 inches in diameter will be salvageable.
Within two years, five to eight feet of brush will have built up and the big trees will begin toppling on this tinder.  You could not possibly build a more perfect fire than that.
If we want to stop the conversion of this forestland to brush land, the dead timber has to come out.  If we take it out now, we can actually sell salvage rights, providing revenue to the treasury that could then be used for reforestation.  If we go through the normal environmental reviews and litigation, the timber will be worthless, and instead of someone paying US to remove the timber, WE will have to pay someone else to do so.  The price tag for that will be breathtaking.   We will then have to remove the accumulated brush to give seedlings a chance to survive – another very expensive proposition.
This legislation simply waives the environmental review process for salvage operations on land where the environment has already been incinerated, and allows the government to be paid for the removal of already dead timber, rather than having the government pay someone else.
There is a radical body of opinion that says, just leave it alone and the forest will grow back.
Indeed, it will, but not in our lifetimes.  Nature gives brush first claim to the land – and it will be decades before the forest is able to fight its way back to reclaim that land.
This measure has bi-partisan precedent.  It is the same approach as offered by Democratic Senator Tom Daschle a few years ago to allow salvage of beetle-killed timber in the Black Hills National Forest.
Finally, salvaging this timber would also throw an economic lifeline to communities already devastated by this fire as local mills can be brought to full employment for the first time in many years.
Time is not our friend.  We can act now and restore the forest, or we can dawdle until restoration will become cost prohibitive.

More Details on the Daschle Amendment

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From 2005
From 2005

Due to the word limit of op-eds, it’s difficult to get all the nuances, even when you are trying to do so.

It’s a pretty obscure field of knowledge, so here goes. In our op-ed, we were saying that if you trade wilderness for “managed acres”, you should understand if the situation will be different than today on the managed acres. If the hold-up to management is appeals and litigation, and you haven’t changed the framework for that, the situation is not going to change. Isn’t that the definition of crazy.. doing the same thing and expecting different results?

Now what’s a bit obscure and confusing is the Daschle amendment, which successfully mandate a quid pro quo kind of deal. Section 706 a) authorized specific projects in and adjacent to Beaver Park, b) authorized two sales in Norbeck, and c) designated an addition to the Black Elk Wilderness. That was the extent of the projects, and all of the authorized on-the-ground work was completed by September 2003. The success of the Black Hills today is not due to “evading environmental laws” through the Daschle amendment. It seems to be due to a lack of interest or success by serial litigators,..correlation or causation?

Now, to you who claim that the problem is that “the FS just needs to obey the law,” I would say that while the folks on the Hills are generally excellent when it comes to NEPA; when I worked in DC in NEPA, I noticed that others, including those in Region 1, are pretty darn good also. So I don’t think the wonderfulness of the people on the Hills, while absolutely true, is the only reason for their success.

As to the specifics of the Daschle amendment, which I think are important to this discussion, according to my historian:

Despite the Chief’s assurances to Senator Daschle that the remand (of the 1997 plan) was relatively minor, the language in the appeal decision basically said that the revised plan was illegal, which shut down the timber sale program and called into question the legality of all sales sold subsequent to the June 1997 ROD. The BHNF did not sell any more timber sales in FY 2000 and much of FY 2001, while they worked on completing a Phase I and Phase II amendment to correct the deficiencies identified in the Chief’s appeal decision.

With Senator Daschle’s guidance (through Eric Washburn), the FS, environmentalists and industry negotiated a Settlement Agreement to a previously unrelated lawsuit involving a salvage sale of beetle killed timber in the Beaver Park area (an inventoried roadless area) that allowed sales already under contract to be modified and operations to continue. That Settlement Agreement was signed in September 2000.

Subsequent to that, the mountain pine beetle outbreak in Beaver Park continued to intensify and expand, with considerable concern and attention from the public and from, then, Representative John Thune. However, the BHNF did not have any ability to respond because a) the second forest plan amendment was not completed and b) the environmentalists wouldn’t agree to it. Senator Daschle (through Eric Washburn) then proposed legislation that would enable the BHNF to respond to the beetle epidemic in the Beaver Park area. The FS, environmentalists, and forest industry negotiated legislative language that a) allowed FS response to beetle epidemic in and adjacent to Beaver Park, b) allowed two sales in the Norbeck Wildlife Preserve to proceed, and c) expanded the Black Elk Wilderness by an additional 3,600 acres of the Norbeck Wildlife Preserve, subject to a) no additional NEPA, b) exempt from Appeals Reform Act and c) not subject to judicial review. That legislation was passed into law in August 2002 as part of a 2002 Supplemental Appropriations Bill (specifically, Section 706 of HR 4775). The legislation was unsuccessfully litigated in federal District Court and the 10th Court of Appeals by a splinter group of diehard Black Hills Sierra Club members.

So here.. 1) litigation had shut down the timber sale program based on the plan.
2) it appears that there was NEPA done before on the project (or related project) that the previous settlement agreement was dealing with (see “no additional NEPA”)
3) the legislation was a deal done by FS, environmentalists and forest industry, overseen by Congressfolk.

Now, I would ask, is a settlement done by a) DOJ and environmentalists, without public presence or involvement (and sometimes leading to odd settlements in Physical World), somehow more fair to everyone than an agreement with the b) FS, environmentalists and forest industry (people who know the details of Physical World and are closer to “the public”), with Congressional involvement?

Because it seems to me like b) is likely to lead to better real world outcomes, that also follow environmental laws. I too, am concerned about “the public” being left out of decisions about public lands; which is one reason why I don’t think settlement agreements from litigation are the best place to make those decisions.

The public at least talks to the FS, and writes comments, and on the Hills, has a formal FACA advisory committee. There is no doubt in my mind that the Supe on the BH has a better idea of what “the public” thinks than do DOJ or environmental group lawyers.

Note: check out the tenor of this story from 2005 about the Wyoming projects in the map above. Just to show that there were appeals and litigation after the amendment.

Most local residents and virtually every government official in the Black Hills – local, state and federal – oppose Biodiversity’s appeals of the three projects. Among those is rancher and real-estate broker Nels Smith of Sundance, Wyo., a former Wyoming state legislator who now serves on the federally chartered Black Hills Advisory Council.

“To me, this is an abuse of the process,” Smith said. “We need timber harvests for a number of reasons. If you don’t cut trees, you end up with a biological desert. It hurts the availability of water and wildlife forage and the health of the forest.”

Nichols, who calls the Cement Project area “the gem of the Black Hills,” says public lands in the relatively unpopulated Wyoming side of the Black Hills are best left to natural processes.

What I like about Jeremy is that he says what the point is.. he doesn’t want timber sales. Not that he “just wants the FS to follow the law.”

Why We Need to Salvage and Replant the Rim Fire

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Greg asked why we should bother with salvage logging on the Rim Fire, and I tried to explain how bear clover would dominate landscapes. He also seemed confused about modern salvage projects, here in California. Everything, here in California, is fuels-driven, as wildfires happen up to 13 times per century, in some places in the Sierra Nevada.

This picture shows how dense the bear clover can be, blocking some of the germination and growth of conifer species. Additionally, bear clover is extremely flammable and oily, leading to re-burns. This project also included removing unmerchantable fuels, including leaving branches attached. Yes, it was truly a “fuels reduction project”. You might also notice how many trees died, from bark beetles, after this salvage sale was completed. Certainly, blackbacked woodpeckers can live here, despite the salvage logging. Hanson and the Ninth Circuit Court stopped other salvage sales in this project, in favor of the BBW.

P9256073-web

When you combine this bear clover with a lack of fire salvage and chaparral brush, you end up with everything you need for a catastrophic, soils-damaging re-burn and enhanced erosion, which will impact long term recovery and the re-establishment of large tree forests. Actually, there has already been a re-burn within this project since salvage operations in 2006. Salvage logging greatly reduced that fire’s intensity, as it slicked-off the bear clover, but stayed on the ground. Certainly, if the area hadn’t been salvaged, those large amounts of fuels would have led to a much different outcome.

Now, if we apply these lessons to the Rim Fire, we can see how a lack of salvage in some areas within the Rim Fire will lead to enhanced future fires, and more soils damages and brushfields. When the Granite Fire was salvaged in the early 70’s, large areas were left “to recover on their own”, in favor of wildlife and other supposed “values”. When I worked on plantation thinning units there, those areas were 30 year old brushfields, with manzanita and ceanothus up to eight feet high. Those brushfields burned at moderate intensity, according to the burn severity map. Certainly, there were remnant logs left covered by those brushfields, leading to the higher burn severity. It was the exact same situation in my Yosemite Meadow Fire example, which as you could see by the pictures, did massive damage to the landscape, greatly affecting long term recovery. Here is the link to a view of one of those Rim Fire brushfields, surrounded by thinned plantations.

https://maps.google.com/maps?hl=en&ll=37.999904,-119.948199&spn=0.003792,0.008256&t=h&z=18

I’ve been waiting to get into this area but, I expect the fire area will remain closed until next year. The plantations were thinned and I hear that some of them did have some survival, despite drought conditions and high winds, during the wildfire. In this part of California, fuels are the critical factor in wildfire severity. Indians knew this, after thousands of years of experience. They knew how to “grow” old growth forests, dedicating substantial amounts of time and energy to “manage” their fuels for their own survival, safety and prosperity. Their preferred forest included old growth pines, large oak trees, very little other understory trees, and thick bear clover. Since wildfires in our modern world are a given, burning about every 20 to 40 years, we cannot be “preserving” fuels for the next inevitable wildfire.

We need to be able to burn these forests, without causing the overstory pines to die from cambium kill, or bark beetles. That simply cannot be done when unsalvaged fuels choke the landscape. We MUST intervene in the Rim Fire, to reduce the fuels for the next inevitable wildfire that WILL come, whether it is “natural”, or human-caused. “Protected” old growth endangered species habitats may now become “protected” fuels-choked brushfields, ready for the next catastrophic wildfire, without some “snag thinning”.  We cannot just let “whatever happens”, happen, and the Rim Fire is a perfect example of “whatever happens”. Shouldn’t we be planning and acting to reduce those impacts, including the extreme costs of putting the Rim Fire out, and other significant human costs? Re-burns are a reality we cannot ignore, and doing nothing is unacceptable. Yes, much of the fire doesn’t have worthwhile salvage volumes, and that is OK but, there are less controversial salvage efforts we can and should be accomplishing.

Here is an example of salvage and bear clover, six months after logging with ground-based equipment. This looks like it will survive future wildfires. You can barely even see the stumps, today! The bear clover has covered them.

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Aerial view of the 1987 Complex Fire Salvage

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I took this shot while flying with a Forest Service buddy in 1989.

Aerial-1987-complex-web

I am pretty sure that this is Forest Service land, near the Groveland Ranger District office. When I worked there in 1990, the Timber Management Officer was still angry at the less-than-aggressive post-fire salvage efforts that allowed so many “brain dead” trees to die and add to the fuel loading. I’m sure that all those dead trees had some green needles on them as salvage logging was proceeding. As you can clearly see in the photo, there are PLENTY of snags left in this HUGE wildfire zone. This isn’t even where the fire burned hot. The subsequent bark beetle bloom spread northward, chewing up forests more than 100 miles away. On the Eldorado, our Ranger District harvested 300 million board feet, between 1989 and 1992, of dead and dying timber from the severe bark beetle infestation. We were lucky, able to slide our EIS into place before the litigators could gather their case together. The Tahoe National Forest was too slow, and lost 2 years worth of salvage logging opportunities, turning merchantable dead trees into future wildfire fuels.

The Lake Tahoe Basin Management Unit was also hard hit, and slow to react. Here is a 1990 view of the north end of the Lake Tahoe Basin. My first two summers in the Forest Service were spent at the top of that mountain as the Martis Peak fire lookout. Of course, there are a LOT more dying trees up there than just the brown trees. So many of those trees became unmerchantable before they could be salvaged, as the public and eco-groups hoped that “nature” would take care of the problem. Since fire suppression in the Tahoe Basin is ensured, most of those dead trees are now horizontal, and perfectly preserved as fuels for the next big, destructive, erosion-causing, lake-polluting disaster.

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Tongass Timber Sale Update: How an endemic species can halt a timber sale

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Earlier in September, a press release from the Greater Southeast Alaska Conservation Community (GSACC) was shared with this blog. It opened with:

On August 16, GSACC and four other organizations filed an administrative appeal of the Tongass Forest Supervisor’s decision to proceed with the Big Thorne timber project. The appeal went to to the next highest level in the agency, Regional Forester Beth Pendleton. The appeal is known as Cascadia Wildlands et al. (2013), and other co-appellants are Greenpeace, Center for Biological Diversity and Tongass Conservation Society.

The project would log 148 million board feet of timber [enough to fill 29,600 log trucks], including over 6,000 acres of old-growth forest from heavily hammered Prince of Wales Island. 46 miles of new logging roads would be built and another 36 miles would be reconstructed.

Today, we get an update on the Big Thorne timber sale on the Tongass National Forest in Alaska in the form of this article, written by Dr. Natalie Dawson, one of GSACC’s board members.

Wolf

“When you spend much time on islands with naturalists you will tend to hear two words in particular an awful lot: ‘endemic’ and ‘exotic’. Three if you count ‘disaster’. An ‘endemic’ species of plant or animal is one that is native to an island or region and is found nowhere else at all.”
-From Last Chance to See by Douglas Adams, author of A Hitchhiker’s Guide to the Galaxy

by Natalie Dawson

On the Tongass National Forest, we hear mostly about trees – whether it be discussions about board feet, acres of old growth, percentage of forest converted to “second-growth” or “the matrix”[*], our conversations tend to focus on the dominant plant species group that defines the rare “coastal temperate rainforest” biome. However, the Tongass is more than a forest, it is a conglomerate of islands, islands of different sizes, islands of different geologic and cultural histories, islands with or without black bears, grizzly bears, or wolves, the iconic species of Alaska. Because of these islands, there are unique, or, endemic, species of various size, shape and color across the islands. Though they have played a minimal role in management throughout the course of Tongass history, they are now rightfully finding their place in the spotlight thanks to a recent decision by regional forester Beth Pendleton.

On Monday (Sept. 30), the US Forest Service announced its decision to reconsider the Big Thorne timber project. This project would have been the largest timber project on the Tongass National Forest in twenty years, taking 6,200 acres of old growth forest (trees up to 800 years old, 100 feet tall, and 12 feet in diameter) from Prince of Wales Island, an island that has suffered the most intense logging in the region over the past six decades. It is also an island that is home to endemic animals found nowhere else in the world.

Citizens of southeast Alaska and environmental organizations including GSACC jointly filed an administrative appeal on the Big Thorne timber project on August 16th of this year. Monday’s response comes directly from regional forester Beth Pendleton. In the appeal, Pendleton cited an expert declaration written by Dave Person, a former Alaska Department of Fish and Game (ADFG) biologist with over 22 years of experience studying endemic Alexander Archipelago wolves on Prince of Wales Island, with most of his research occurring within the Big Thorne project area. Pendleton cited Person’s conclusion that “the Big Thorne timber sale, if implemented, represents the final straw that will break the back of a sustainable wolf-deer predator-prey ecological community on Prince of Wales Island…” Her letter states, “This is new information that I cannot ignore.” The response to the appeal requires significant review of the timber project before it can move forward, including cooperative engagement between the Tongass National Forest and the Interagency Wolf Task Force to evaluate whether Dr. Person’s statement represents “significant new circumstances or information relevant to” cumulative effects on wolves (including both direct mortality and habitat).

As one of my students today in class asked me pointedly, “So what does all this mean?” Well, it means that the largest potential timber sale in recent history on our nation’s largest national forest, on the third largest island under U.S. ownership, is temporarily halted under administrative processes due to an endemic species. It does not mean that this area is protected. It does not mean, that our work is done. Pending the outcome from conversations between the Forest Supervisor and the Interagency Wolf Task Force, especially under the current political climate within the state of Alaska, we may have plenty to keep us busy in the near future. It does mean that, even if only briefly, the endemic mammals of the Tongass National Forest received a most deserving moment in the spotlight. This could result in a sea-change in how the Tongass National Forest is managed.

This also means that science is being given a chance to play an important role in an administrative decision on our nation’s public lands, and two endemic species, the Alexander Archipelago wolf, and its primary prey species, the Sitka Black-Tailed deer, are forcing federal and state agency personnel to reconsider their actions. Science must continue to play an important role in the future of all activities on Prince of Wales Island. It is home to many endemic animals found only on a small percentage of islands on the Tongass National Forest, and nowhere else in the world. This lineup includes the Prince of Wales Island flying squirrel, the spruce grouse, the Haida ermine, and potentially the Pacific marten, which was only recently discovered on nearby Dall Island. The future of the Tongass timber program and human development on these complex islands are inextricably tied to ensuring a future for all other species in one of the world’s only remaining coastal temperate rainforests.
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Dr. Natalie Dawson has done years of field work on endemic mammals throughout much of Southeast Alaska, studying their population sizes and distributions through field and laboratory investigations, and has published peer-reviewed scientific papers on these topics. She presently is director of the Wilderness Institute at the University of Montana and a professor in the College of Forestry and Conservation.

[*] What is the matrix? The conservation strategy in the Tongass Forest Plan establishes streamside buffers (no logging) and designates minimal old growth reserves, in an attempt to ensure that wildlife species on the Tongass remain viable. (Whether the strategy is sufficient for this is at best questionable.) The matrix is the expanse of habitat that is allocated to development (such as logging) or that is already developed, and which surrounds those patches of protected habitat.

UPDATE: Readers may notice that in the comments section a claim is made that the Sitka black-tailed deer are not endemic, but were were introduced. The Sitka black-tailed deer (Odocdileus hemionus sitkensis) were not introduced to Southeast Alaska; the Sitka black-tailed deer is indeed an indigenous, endemic species there.

Also, another commenter suggested referring to the article on the GSACC website, as at the bottom of the article one can find much more information about the Big Thorne timber sale and also the declaration of Dr. David Person regarding Big Thorne deer, wolf impacts. Thanks.

Litigation and Policy, a tangled web

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If anyone’s interested, this post basically carries over a discussion from the “hazard tree lawsuit update” post (https://forestpolicypub.com/2013/09/25/hazard-tree-lawsuit-update-adopt-a-project/comment-page-1/#comment-19429), about the question of whether forest management policy is set by litigation, or not (i.e., Sharon’s phrase “If we currently manage forests by court case . . .”  There, I argued (along with others) that litigation doesn’t set policy, but I think maybe I understand where Sharon was coming from with her statement. Hence, here’s my short attempt to unravel the policy/litigation tangle. A standard definition of “policy” goes something like “A policy is a principle or protocol to guide decisions and achieve rational outcomes. A policy is a statement of intent, and is implemented as a procedure or protocol.” If that’s the case, a policy is a relatively formal instrument, not “what you happen to be doing” but rather “what you’re supposed to do and how you’re supposed to do it.”  The NFMA (or a particular Forest Plan derived from it) is as good an example of policy as any, since it lays out intent and the requirement for procedures that range from stringent (i.e., standards) to more precatory (sorry, lawyer term = wishful but not necessarily legally binding) such as guidelines. NEPA, ESA, or CWA are other good examples of federal policy that agencies are required to follow.  Litigation against the USFS generally takes the form of one or more plaintiffs claiming that the FS is not following the requirements laid out by policy. In that sense, litigation is a tool to enforce policy that’s in place, rather than to make new policy.

But, it’s also clear that litigation can be a motivating factor for subsequent policy changes. The classic example is the so-called “Monongahela Decision” (Izaak Walton League v. Butz, 522 F.2d 945, 950-52 (4th Cir. 1975)), where the Court said that the FS was violating policy (Organic Act) prohibiting clearcutting. That was a motivator for congress to implement new policy, in the form of the 1976 National Forest Management Act, 16 U.S.C.A. 1604, which in part had the effect of restoring clearcutting as a potential management tool.  So, while litigation did not itself make new policy, it did have the effect of encouraging policy-makers to come up with new policy.  While litigation and policy-making are not the same thing, there’s little doubt that they are intertwined. I found a 1975 quote from Hubert Humphrey with language very similar to Sharon’s, he said that NFMA would be a way to “get the practice of forestry out of the courts and back in the forests.”  Hubert Humphrey is long gone, of course, and won’t have a chance to read this post 🙁    And, confounding the issues even more, some plaintiffs might indeed have the long-term goal of prodding an agency or legislature to change a policy (although again, the court itself doesn’t make that change), or of having the court interpret the language of the policy in a way that’s favorable to them (e.g., the recent SCOTUS Decker logging road runoff decision).

One last thing I found online, is a theoretical so-called “policy cycle” that apparently gets a lot of attention from policy people, it has 5 stages:  1. Agenda setting (Problem identification); 2. Policy Formulation; 3. Adoption; 4. Implementation; and, 5. Evaluation.   Looking at a policy example such as the Nez Perce Forest Plan (1987), it’s easy to identify how stages 1 and 2 were done under guidance from NFMA, and presumably also with some opportunity for public/stakeholder input. Stage 3 is the formal signing of the Plan in 1987 (plus subsequent amendments). Stage 4 represents the duty of the FS to put the Plan into action, while focusing on guidelines and adhering to standards within it. Stage 5 is something I know less about, I assume that FS conducts some kind of ongoing formal/informal evaluation, especially since a re-write of the Plan needs to be done soon. But my point is that litigation falls outside of this policy cycle. It is aimed either at the early stages (to the extent that courts allow challenges to forest plans, but they don’t always, contending a plan isn’t “ripe” for litigation), but primarily at step 4 (Implementation): the lawsuit claims that the FS is not appropriately implementing the policy, and to the extent that policy components are legally binding, it’s breaking the law. Thanks for listening. Here’s a really good DOJ website about the origins of NFMA: http://www.justice.gov/enrd/3253.htm

Hazard Tree Lawsuit Update- Volunteers Needed for “Adopt a Project”

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I spoke to Ms. Boggs, the Executive Director of the Conservation Congress. She said that she does not post or make available the 990’s and Board of Director information but that that can be found in the State of California records since the organization is incorporated in California.

I asked if she had a plain English version of what the issues are, but she said that if people were “too lazy” to read the complaint it was too bad. She also said that the things written on our blog about the project were not true (as to me, I just looked at the project map and the ESD). What was interesting to me about this conversation is that most people I speak with are interesting in explaining their point of view, so as to get public support. One of the things I don’t like about managing forests from the courtroom, as Tony articulated in a comment in the last week or so, is that it’s a confrontational kind of win/lose world. Sometimes it’s hard to be civil in that kind of atmosphere.

Now, as you all know I have read EA’s, maps, appeal responses, and complaints in the past on various projects, but I would appreciate if others (closer to the project?) would be willing to do that work.

1) Look at the complaint and the project documents (sometimes it’s as simple as comparing the claims in the complaint to the wildlife bios’ report or the FWS letter)

And write.. “this is the claim in the complaint and here is what the FS says in their documents here, plus here’s what common sense tells you (e.g., gravity causes dead trees to fall down)” for posting on the blog and general public information. Media around the area might also be interested in a summary.

2) Take photos of the area when the project documents don’t have them. And or send us a googlemaps link. Note to FS folks- this would generally be handy to include in project documents.

I am willing to help any volunteers, but what I do is not difficult.