Litigation

Supremes Take On Sierra Nevada Forest Planning..

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Here’s a link and below is an excerpt.

On Monday, the court agreed to referee the dispute pitting environmentalists with the Portland, Ore.-based Pacific Rivers Council against the U.S. Forest Service over decision-making that dates back to the second Bush administration. While the specific case involves 11 Sierra Nevada forests, the eventual outcome could shape everything from who gets to file lawsuits to the scope of future environmental studies.

“Definitely, throughout the West, this could have huge impacts on the moving of projects forward,” Dustin Van Liew, executive director of the conservative Public Lands Council in Washington, D.C., said in an interview Monday.

One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.

A second major question is how extensively detailed the Forest Service must be when preparing overarching management plans, such as the one governing the 11 Sierra Nevada forests.

“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”

Underscoring the case’s potential significance, the Public Lands Council and the affiliated National Cattlemen’s Beef Association secured Supreme Court permission Monday to file a brief opposing the environmental group. Many more briefs, from both sides, are sure to come.

The court’s decision to hear the Sierra Nevada case, sometime during the 2013 term that starts in October, means that at least four of the court’s nine justices agreed to reconsider a 9th Circuit Court of Appeals decision from last year in which environmentalists prevailed.

In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.

“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.

Has anyone actually looked at what they did write about fish? Seems like if they wrote “enough” about everything else in the document they would have also written about fish “enough”.

Funny that Judge Fletcher says that the 2004 plan “allows” more burning, as if that was a bad thing.. prescribed as opposed to wildfires?

Of course, I am not a believer in hypothesized future effects of unknown projects in unknown numbers, of unknown kinds with unknown mitigation requirements in unknown locations…

“My first Sierra Nevada backpacking trip was to the Mineral King area in 2000, during which time I also fished,” Pacific Rivers Council Chairman Bob Anderson, a South Lake Tahoe resident, said in a court declaration used to establish injury and standing. “I plan to continue these activities as long as the management of Sierra Nevada national forests does not prevent me from doing so.”

Of course, forest plans require actual projects to be “management” that could have environmental impacts of the kind Mr. Anderson is concerned about.

This follows a bit of the ocean liner vs. flotillas of dinghies discussions about NEPA documents. As NEPA documents grow in size and area covered, they are increasingly functions of assumptions made about what might happen, and move further from physical reality (“might-could” NEPA). That makes them both easier, and more important, targets for litigation. The idea of humungo-NEPA makes the ultimate disposition dependent on the vagaries of random sets of judges determining what is “enough,” and or small sets of people at DOJ and for groups working to settle. The nexus of decision making moves further from the area impacted, and from those familiar with the actual land and people most impacted by the decisions. I don’t think that that’s a good thing.

Wiretap ruling could haunt environmental lawsuits

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Thanks to a reader for this one from Greenwire.

Here’s a link:

Here’s an excerpt.

Writing for the majority on 2008 amendments to the Foreign Intelligence Surveillance Act, Justice Samuel Alito rejected the groups’ arguments that there was an “objectively reasonable likelihood” that their communications would be intercepted. Further, he noted that the law requires the government to take several administrative steps before issuing the wiretaps.

Consequently, he wrote, the groups’ arguments rest “on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable” to the law.

Legal experts said the words “certainly impending” are new to standing precedent and are especially problematic for environmental groups bringing lawsuits.

The ruling “underlies a shift to a stricter standing doctrine with links to the causal chain viewed with skepticism,” said Amanda Leiter of American University’s Washington College of Law.

Simply put, it is hard for environmentalists to prove what is “certainly impending” after an agency action.

Moreover, Alito’s focus on the “speculative chain of possibilities” could also pose new hurdles, said Justin Pidot of the Sturm College of Law at the University of Denver.

Pidot, a former litigator in the Justice Department’s Environment and Natural Resources Division, proposed a hypothetical in which an oil company applies for and receives a lease and permit to operate on federal land from the Bureau of Land Management. Environmentalists sue BLM, alleging that the drilling will harm them in a variety of ways, ranging from the destruction of hiking trails to negative impacts on waterways.

The rub under Alito’s reasoning, Pidot said, is that the environmentalists are actually injured by what the mining company may do in the future and not by BLM issuing the permits.

“All of those injuries flow from the drilling activity itself, not from the granting of the permit,” Pidot said. “But if you’re seeking the permit, you are actually going to engage in the permitted activities.

“That hasn’t been something that has troubled courts in the past,” he continued. “But the language of ‘certainly impending’ injury is the kind that a lower court judge hostile to environmental plaintiffs could seize on to kick it out of court.”

I like how folks in the legal world use these colorful terms like “hostile” “kick it out” when the judges could legitimately think that a precedent was set by the Supreme Court decision. It makes me think it might not be about the law so much as the courts being a venue for promoting agendas with “hostile” and, possibly, “friendly” judges. Maybe that’s what leads to the observed “crapshoot” nature of cases..

Judge: USFS Must Consult with US FWS to Protect 10 Million Acres of Lynx Critical Habitat

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lynxOn May 16, 2013, U.S. District Court Judge Dana Christensen ruled in favor of conservation groups and found that the U.S. Forest Service violated the Endangered Species Act when it failed to consult with the U.S Fish and Wildlife Service to determine whether its region-wide management direction for the threatened Canada lynx would destroy or adversely affect 10 million acres of designated critical habitat for the elusive feline.

In the past, the Forest Service had taken a project by project approach to managing critical habitat, but recovering Canada lynx requires managing their habitat at the large landscape scale. This ruling requires the Forest Service to sit down with the Fish and Wildlife Service to ensure its big-picture management scheme is protecting the 10 million acres of designated lynx critical habitat in the northern Rockies. The judge’s ruling impacts 11 national forests containing designated critical habitat in Montana, Idaho and Wyoming.

The lawsuit challenged the Forest Service’s failure to consult with the U.S. Fish and Wildlife Service to ensure that the Northern Rockies Lynx Management Direction would not destroy lynx critical habitat. At the time the management direction was adopted, lynx critical habitat was only designated in three national parks—Glacier, North Cascades and Voyageurs. The U.S Fish and Wildlife Service subsequently designated 10 million acres of critical habitat across 11 national forests in the northern Rockies after it determined that Julie MacDonald, a high ranking political appointee in the Bush Administration, had improperly interfered with critical habitat designations for several species, including the Canada lynx. The court ruling determined that the Forest Service should have consulted with the Fish and Wildlife Service when the new critical habitat was designated.

Court Upholds Forest Plan for Black Hills

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Black Hills MPBR Project
Black Hills MPBR Project

So we have the sale-by-sale focus of groups in Montana. We have the “timber wars” narrative continuing to play out in Oregon. Then we have the little old Black Hills where peace seems to have broken out. What does it take? Good environmental work and local people who work with each other. Supportive state governments and reasonable courts. Small timber and logging firms. A FACA committee?

Interesting because the next step is their adaptive NEPA large scale project (248K acres), which could be a lead example of how to streamline NEPA and follow the current legal framework. They had three objection, so far no litigation and are about to start implementation. Here’s a link to the documentation.

Here’s one article..from radio KOTA.. this one has more history in it about the Norbeck lawsuit..

Attorney General Marty Jackley announces that the Wyoming Federal District Court has again upheld the current Black Hills Forest Plan. The 1990 Forest Plan was amended in 2005 after a top ranking forest service official sent it back for more study of its effects on wildlife.

During the review, the amendment process also included extensive consideration of the rampant mountain pine beetle infestation which grew exponentially from 1997-2005…

South Dakota has vigorously urged the Forest Service to fully consider the mountain pine beetle and its damaging effects on trees and the increased risk of fire damage…

Jackley said that the timbering activity has been ongoing because the courts have sided with the National Forest Service and the state of South Dakota during these litigations..

In 2011, the Eighth Circuit Court of Appeals in St. Louis upheld the related plan for the Norbeck Wildlife Preserve that also provided for diversity in timber management for game animals and bird habitat in a portion of the Forest. Within weeks after losing their Norbeck challenge in the Eighth Circuit, the same environmental groups and others filed suit in Wyoming Federal District Court, seeking to set aside the 2005 overall Forest Plan. The South Dakota Attorney General intervened on behalf of the State of South Dakota in support of the 2005 Forest Plan. The Wyoming Federal Court upheld the Forest Plan in late 2012 and has now rejected a motion by the environmental groups to reconsider the ruling. The environmental groups will have until mid-June to appeal the District Court’s ruling.


Here’s another article on the court decision from the Rapid City Journal.

Lawsuit filed against Kootenai National Forest logging project

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The Kootenai National Forest's Young Dodge logging project (analysis area pictured above in this Google image) is located approximately 15 miles northwest of Eureka, MT on the west side of Lake Koocanusa. The very top of this image is the US/Canadian border. The extensive network of clearcuts and logging roads already within the Young Dodge project area are clearly visible in this image. In fact, according to AWR's attorney, "in the past 15 years, a stunning 63% of the Young Dodge planning area has been logged."
The Kootenai National Forest’s Young Dodge logging project (analysis area pictured above in this Google image) is located approximately 15 miles northwest of Eureka, MT on the west side of Lake Koocanusa. The very top of this image is the US/Canadian border. The extensive network of clearcuts and logging roads already within the Young Dodge project area are clearly visible in this image. In fact, according to AWR’s attorney, “in the past 15 years, a stunning 63% of the Young Dodge planning area has been logged.”

The following is a press release from the Alliance for the Wild Rockies.  A copy of the lawsuit is here. – mk

“Grizzly numbers in the Cabinet-Yaak ecosystem continue to decline every year,” said Mike Garrity, Executive Director of the Alliance for the Wild Rockies.  “In spite of these falling grizzly bear numbers the Forest Service plans to commercially log thousands of acres and then use low-level helicopter flights to light prescribed fires in occupied grizzly habitat.  Its well-known science that low-level overflights by helicopters ‘harm and harass’ grizzly bears in violation of the Endangered Species Act.  But even though we cited the legal cases, the rulings of federal judges, and even the agency’s own policies that ban such activities, the Forest Service refused to listen. So now we’re going to court to stop them.”

The proposed logging and burning will occur in the remote and biologically rich Cabinet-Yaak ecosystem, Garrity explained.  The area contains designated critical habitat for Canada lynx and grizzly bear.

“The grizzly bear population in the Cabinet-Yaak is the only population of grizzly bears in the United States that is known to be in decline,” Garrity continued.  “Data indicate that the grizzly bear population in the Cabintet-Yakk is declining primarily due to unsustainable levels of of human-caused mortality.”

The rate of population decline for the grizzly bear population for the CYE has been calculated to be between 2.7-4.1 percent of the population annually.  Between 1982 and 2009, 37 grizzly bears in the Cabinet-Yaak area died from human causes, with poaching being the leading individual source of mortality.  “Add to that the decreasing population trend, genetic and demographic isolation, inadequate habitat protections, increased fragmentation both within the recovery zone due to mines and private land development and it’s clear why this population is considered endangered,” said Garrity.

“The dwindling population of the Cabinet-Yaak grizzly bears are almost certainly going extinct according the US Fish & Wildlife Service.  Yet, the agency is ignoring its own science,” added Garrity. “The small population of only 45 bears is less than half of the minimum of 100 bears needed ensure a genetically-stable population. That fails to meet the federal government’s own recovery goal and these projects would only have accelerated the loss of this population of grizzlies.”

Matt Bishop, the attorney for the Western Environmental Law Center representing the Alliance in the lawsuit, explained the specifics of the project – and the consequences to both grizzly bears and endangered Canada lynx which inhabit the area. “In spite of the known impacts to the dwindling grizzly population, this project authorizes commercial logging of approximately 8 million board feet of timber from 28 units totaling approximately 2,168 acres and 1,042 acres may be logged prior to burning,” Bishop said.  “This includes numerous large clearcuts, which will connect to previous clearcuts to create six large openings. These six openings will be 540, 279, 269, 220, 163, and 99 acres in size.”

“In the past 15 years, a stunning 63 percent of the Young Dodge planning area has been logged,” Bishop continued.  “A variety of different forms of logging resembling clearcuts has been used: clearcuts with reserves, seed tree cuts, shelterwood cuts, and sanitation salvage cuts.  Seed tree and shelterwood cuts are basically clearcuts, except a small number of trees are left per acre.  Seed tree cuts remove 85-90% of the forest canopy and leave 8-20 trees per acre.  Shelterwood cuts remove 60-75% of the forest canopy and leave 10-40 trees per acre.”

“The Forest Service’s own research shows that lynx avoid logged areas and especially clearcuts. Lynx need forest with a lot of downed trees. When the dead trees fall, they provide cover and habitat for snowshoe hares and squirrels, which in turn are eaten by pine marten, lynx, goshawks and great gray owls. The downed trees also provide important cover for big game, lynx, and grizzly bears.”

“This is a relatively small area and losing that much habitat to clearcuts would definitely displace the bears and lynx from thousands of acres,” Bishop concluded. “The federal government’s own data show the grizzlies need more secure habitat, not less, or this population of bears and the lynx in the lower 48 states are going to vanish. We would just as soon see the federal government follow the law and its own science, but since the Forest Service chose not to, we were left with little option but to challenge this logging.”

“The Forest Service’s own research shows that lynx population in Montana is currently declining and habitat loss will do nothing but exacerbate this decline,” Garrity added.  “Montana has less than 300 lynx — yet this is more than any other state in the Lower 48.  It makes no sense for federal government to borrow more money from China to subsidize clearcutting so we can ship more lumber to China at a cost of more dead lynx and more federal debt.

“This is the yet another example of the Forest Service trying to push money-losing, illegal logging in endangered species habitat,” said Garrity.  “It’s hard to believe that, as Congress struggles with deficit reduction, the Forest Service is trying to move forward with a timber sale that will lose $4 million in taxpayers’ dollars when the federal government is cutting vital programs due to the sequester,” Garrity concluded.

“A Modest Proposal”- Certification for National Forests II

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NFCertificationStudy_PIC 1

Yesterday’s discussion was interesting, and I think we need to carry it forward. But my first thought was that I was proposing a solution to what many perceive to be a problem. It occurs to me that we may need to back up to understand how people think about whether there is a problem or not.

IF cutting trees and selling them can be done in a sustainable way (as environmental folks seem to think about FSC) (I know there is controversy about SFI vs. FSC, and I also don’t like the idea of public forests being managed to standards developed by third parties, still, the reason I brought it up is that it says that environmental groups think timber harvesting is OK in specific places, with specific practices).

I think it’s well worth a read of the Pinchot Institute’s National Forest Certification study Executive Summary here. If you have more time, you might be interested in the other documents.

This is from the Executive Summary of the Pinchot Institute study about forest certification:

This represented an important breakthrough in the contentious arena of forest conservation.
No longer were forest industry and environmental activists simply locked in a legal and policy stalemate over whether timber harvesting could take place, but how it could take place while ensuring that it is ecologically sound, economically viable, and socially responsible. These developments also held out the promise of calming some of the public controversy around forest management, by providing citizens with credible assurances that the forests in question were not being overexploited, and adequate protection was being provided for forest areas of exceptional importance for conservation values such as biodiversity, wildlife habitat or water quality

During the time period I was reviewing this study I always considered this to be MBWT “or management by wishful thinking”, but it is asserted in the study (also the Executive Summary):

This report describes the results of independent audits of five units of the National Forest System ranging from 500,000 to 1.5 million acres in size. This case study is the culmination of what has become a ten-year research project that ultimately involved forest certification audits on state forestlands in seven states, 30 areas of Native American tribal forestlands, and one national park. It should be noted that, in each case, the independent audits identified needs for corrective
actions, and in each case these were successfully addressed by the agencies’ forest managers. A general conclusion among the agencies themselves is that the reduction in costs associated with public controversy and legal challenges—not only on agency budgets but on the spirit and morale of their forest managers—more than offset the time and expense associated with the certification process.

(Italics mine)

So here were a couple of my concerns:

1) FSC practices are (were) all over the map. It would be better to certify to publicly developed practices (the equivalent of the broad labor union contract in conflict resolution?). But environmental groups are attached to FSC; we could have the public develop the practices and have third party audits, but then it wouldn’t be “FSC”. With all the technical and scientific folks in NFS and R&D and all the folks with practitioner knowledge, the State wildlife folks, etc. it just seems like you could do a better job with standards than FSC did.

2) It would be better for the FS to have a broader third party audits in terms of its management (beyond vegetation management, the whole enchilada, recreation, grazing, oil and gas, ski areas) (not so sure I still think that).

Now, some may think that everything is fine now. But I would ask everyone to “listen with the ears of the heart” as per Benedict of Nursia to a previous comment on this blog here by Rob DeHarport, where I think he articulated “the problem” clearly:

In my humble opinion the problem is two-fold. The first part is the utter failure of President Clinton’s Northwest Forest Plan (NWFP). Of the five stated priorities or goals in the NWFP, none have been fulfilled. Lawsuits and the potential of lawsuits on virtually every timber sale in the NW have resulted in the “Gordian Knot” that former USFS Chief Jack Ward Thomas has referred to in his assessment of the failed NWFP of which he was a key player. The state of Oregon, timber dependent counties, cities and schools continue to struggle to replace lost revenues that occurred soon after the Northwest Spotted Owl (NWSO) was listed as an endangered species.Neither the NWSO or local and state economies have been able to replace lost revenues despite the best efforts.
However, budgets have tightened, increased taxes are not likely in already poor counties. Curry County is virtually bankrupt. Lane County can not afford to hold violent criminals in jail, etc. etc. Meanwhile, the Federal government Rural School Funds have dried up as the nation continues to print and borrow money at a record and unsustainable pace. The NWFP was supposed to find a “middle ground,” it did not happen. Yet, here we are nearly 20 years later living with a failed plan. Governor Kitzhaber created another committee of stake-holders to find a solution with little or no success.
Mac McConnell’s statement is true. In US House District 4 there are nearly 5 million acres of National Forest. Since the NWFP logging has been scaled back far below what the NWFP called for due to continued protests. The logging that is occurring on these lands will essentially create a 5 million acre spotted owl reserve. As the thinning projects leave trees that are less than 80 years old to grow to age 80 and older- thus becoming “Old Growth Spotted Owl Habitat.”
I live in the Oakridge area of the Willamette National Forest, I have walked with USFS staff through a couple of thinning timber sales as I mentioned in the previous paragraph. These sales take years of planning and navigation through the “Gordian Knot.” There is also the excellent Jim’s Creek Oak Savanna Restoration Project near my home that has been stymied at a little more than 400 acres due to the very real risk of litigation or the lack of commitment by USFS upper management to allow such good sound forestry.
Here are two paragraphs from Wikipedia concerning the Elliott State Forest:
Controversy arose in 2011 in response to changes in the way the forest is managed. Adopted by the land board in October 2011, a new management plan aims to increase annual net revenue from the forest to $13 million, up from $8 million. It would achieve this by increasing the annual timber harvest to 40 million board feet culled from 1,100 acres (450 ha), of which about three-fourths could be clearcut. The former management plan, adopted in 1995, called for 25 million board feet from 1,000 acres (400 ha), half of it clearcut.[5]

The plan also changed the way in which the forest is managed to protect threatened and endangered species such as spotted owls, marbled murrelets, and Coho salmon. Supporters of the new plan say it will benefit wildlife by making more acres off-limits to logging than had been reserved for owls, murrelets, and watershed protection under the old plan. Opponents of the plan say it will damage habitat and harm wildlife. They would prefer a plan that promotes thinning of young trees, avoids clear-cutting, and seeks other ways of raising revenue from the CSF lands.[5]
In July 2012 despite the great recession the US imported $216 million dollars of softwood lumber from Canada. (according to the Sept. 17, Globe and Mail) Meanwhile rural Oregon timber counties have a unemployment rate that is actually over 20%, and our forest continue to be passively managed at best.
I am the Mayor of the small community of Westfir and serve on the Oakridge, Oregon School Board. I know first hand how failed policy has impacted rural Oregon timber towns and counties. There is a middle ground, we have not come close to finding that sweet spot in managing our forests.

I’d be interested in hearing

If you don’t think that there is a problem, and why..

What you think about whether certification alone would solve “the problem” in your opinion.
Apparently some in the environmental community doesn’t want NFS to do certification, I’d be interested in their rationale, if anyone knows.

Possible 21st Century Solution to the Timber War Aftershocks- A “Certification Agreement”

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FSC on display in Final Four (© Connor Sport via YouTube)
FSC on display in Final Four
(© Connor Sport via YouTube)

So I’ve been thinking (some might say procrastinating from reading the Planning Directives) about ideas to get from there to here with regards to sustaining rural economies. Based on the comments on conflict resolution about BATNA’s and negotiation tactics, it would seem that we would want to make some large decisions and negotiate those.. perhaps writing something in to law that if projects follows those rules, they would not be open to litigation or some further nuanced variant of that idea.

So the next things that came to mind is “if environmentalists are for FSC certification, then logically “logging can take place in an environmentally sound manner.” Now, I am not a fan of FSC requirements for reasons I could go in to, but let’s just do the thought experiment for now. Check out their website here if you are curious about their claims. They say they are “protecting and maintaining high conservation value forests” and they have rules about how to do it. My point is that it is possible to generate a set of rules and monitor them at a level broader than a project or forest.

Biologically and physically, land is land, regardless of owner. So, say, if it’s environmentally fine to produce timber from private ground with FSC, then it should be equally environmentally OK to produce it from federal ground. If that’s not OK, then groups need to come up with some reason other than the environment, as to why that’s the case. Folks on the blog can help me clarify my logic here.

So what if we coupled a certification requirement of some kind with requirements to be negotiated, with reduced capacity for litigation? Basically like a labor agreement instead of renegotiating the agreement every workday with every project.

I remember I used to work on certification a bit when I worked in the FS. What I heard was that some environmental organizations were against it due to a philosophical dislike for commercial use of forests (now I never spoke to them, but conceivably that would include outfitter-guides, ski areas, etc. if it were philosophical). It’s OK to be philosophical but let’s be clear about what’s philosophical and what’s environmental. Let’s also be clear about the social justice aspects of employment in different sectors.

A reader sent me this piece, from Jim Petersen which raises some of the same ideas. It’s worth reading, called “Collaboration, been there, done that.”

Having watched federal judges and environmentalist lawyers twist federal forest regulations into pretzels with no beginning or ending point, I’ve concluded that collaboration’s only chance for success rests in first restoring its public credibility, and second in the Forest Service putting on its big boy pants and telling the public that federal timber is a valuable and vitally important strategic asset that needs to be actively managed using the best tools science provides.

Consensus forestry – collaboration – will not serve this nation’s long term economic and environmental interests any better than stewardship contracting. Both are tools the Forest Service can and should use appropriately, but someone needs to make the hard decisions about timber management, and that someone is Forest Service Chief, Tom Tidwell. At the very least, he ought to vigorously pursue third-party forest certification of all federal forests. Let’s see if our national forests are being sustainably managed. I frankly doubt it. In some national forests, mortality from insects and diseases now exceeds annual growth – a condition that is not sustainable by any measure.

There is a very good reason why most people who live in rural timber towns no longer waste their time in “scoping” meetings or “collaborative efforts.” It is because the process is rigged. If environmentalists participating in “collaboration” don’t like the result, they sue with impunity because the law allows them to do it. Win or lose, they can even collect their legal fees from taxpayers. This is ridiculous, insulting and wrong.

Collaboration will only work if Congress first declares that the results of collaboration – the actual plans developed by disparate interest groups working together toward a commonly shared goal – are not subject to judicial review by any court in the land. Thus, the end result of the patience and hard work that collaboration demands is an on-the-ground management prescription the Forest Service can implement without fear of appeal or litigation.

Until Congress bulletproofs collaboration, it risks the same miserable fate as the brilliantly conceived forest planning process that now rests atop history’s trash heap.

Science at the Bar- The Bigger Picture of Scientific Information Used in the Legal World

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science at the barThis post is a followup to Matthew’s comment here:

Finally, the notion that judges should decide legal issues surrounding the Forest Service because they are not forestry experts is in interesting one. Fact is, judges aren’t necessarily experts in divorce, murder, theft, DUI’s, bribery, etc either….but they rule on cases involving these issues all the time. What federal judges are experts in is the laws of this nation, and unfortunately, too many times, the Forest Service fails to comply with those laws

It occurs to me that many of you might not be aware of the context around the broader issues of courtroom decisions and other kinds of expertise, including scientific expertise. Within the science and technology studies literature, you may find many folks who have studied scientific issues and how they are handled in the courts. Our world is not separable from that world. Dr. Sheila Jasanoff‘s book
“Science at the Bar:Law Science and Technology in America” is considered by many to be the fundamental work in this area, and well worth a read.

Unfortunately, I couldn’t easily lay my hands on my copy of the book, but I did find a review here in the New England Journal of Medicine.

SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN AMERICA
By Sheila Jasanoff. 285 pp. Cambridge, Mass., Harvard University
Press, 1995. $29.95. ISBN 0-674-79302-1.
To many physicians, science in the courtroom means trouble. Science, it is claimed, deals with objective facts and theories whose validity can be judged only by those with lengthy training in scientific method. Law, in contrast, involves rules and regulations applied by judges and juries almost always lacking competence — and often demonstrating striking incompetence — in evaluating scientific evidence. Putting science at the bar is therefore an invitation to outrageous malpractice awards, to the testimony of charlatans who are taken seriously by juries, to the awarding of irrationally large damages in “toxic tort” cases in the absence of scientific evidence of toxicity, to lay interference in the conduct of medical research, and to a familiar litany of judicial errors.

But Sheila Jasanoff, in this broad-ranging and authoritative survey of the relation between law, science, and technology, presents a far more nuanced and complicated picture. Jasanoff, trained as a lawyer and subsequently the creator of Cornell’s flagship department of science and technology studies, has devoted most of her professional life to studying science in the courtroom. Her conceptual framework draws on the emerging field of science studies. In recent decades, this field has come to redefine science not simply as the discovery of the truths of nature, but also as a complex, problematic, error-prone, controversy-ridden process of “constructing” a view of the natural world that may, with luck, rhetorical skill, and time, eventually come to be accepted as mainstream, or “textbook” science.

Thus redefined, science begins to look much more like law. And the notion that the courts should simply ascertain “the established scientific view” appears, at least in many cases, similar to the search for a chimera. For as Jasanoff shows in her many examples, most of them involving biomedical matters, the courts are almost always called on in areas where empirical research is inconclusive, scientific opinion is divided, decisive epidemiologic studies have not been completed, or legislatures have not been willing to provide a framework to govern the application of — for example — new reproductive
and life-prolonging forms of technology. As she puts it, “courts, like regulatory agencies, conduct the bulk of their scientific inquiries ‘at the frontiers of scientific knowledge’ where claims are uncertain, contested and fluid, rather than against the background of largely settled ‘mainstream’ knowledge.”
….

Jasanoff concludes with suggestions for a “more reflective” alliance between law and science. She is well aware of the many egregious errors made by the courts. But in the end, she sees the relation of science and law in America as generally positive, as granting the legal system a “limited and highly
contingent ability to interrogate the scientific community,” as encouraging scientific “reflection and self criticism,” and in general, as encouraging the advance of science and ratifying the positive American view of science and technology. For any serious student of science and law in America, this is an original and essential book

Interestingly, in the search for the review, I also ran across this article by Dr. Jasanoff:
“Is science socially constructed—And can it still inform public policy?” Here is the link:

Abstract

This paper addresses, and seeks to correct, some frequent misunderstandings concerning the claim that science is socially constructed. It describes several features of scientific inquiry that have been usefully illuminated by constructivist studies of science, including the mundane or tacit skills involved in research, the social relationships in scientific laboratories, the causes of scientific controversy, and the interconnection of science and culture. Social construction, the paper argues, should be seen not as an alternative to but an enhancement of scientists’ own professional understanding of how science is done. The richer, more finely textured accounts of scientific practice that the constructivist approach provides are potentially of great relevance to public policy.

which sounds interesting, and relevant to this blog. You can read the first two pages online but it costs $40 to read the whole thing. Published in 1996. Of course, Dr. Jasanoff does not work for a public university, but still..

PEER: Alaska Wastes Millions on Fruitless Lawsuits

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The following press release is from PEER (Public Employees for Environmental Responsibility). One has to wonder if any of the information and facts below concern Senator Murkowski in the least.  Also, I assume since some commenters on this site regularly rail against any and all lawsuits from environmentalists that these same commenters will take the state of Alaska to task for these fruitless lawsuits that are costing taxpayers so much money. – mk

Washington, DC — The State of Alaska is forfeiting substantial public dollars pursuing fruitless lawsuits against federal wildlife and forestry laws, according to documents posted today by Public Employees for Environmental Responsibility (PEER). The lawsuits highlight the lack of independent legal analysis prior to the state charging off to litigate against political windmills.

Documents obtained in public record requests filed by Rick Steiner, a retired University of Alaska professor and PEER Board member, indicate that the state’s attempt – instigated by Governor Sarah Palin, and then continued under Gov. Sean Parnell – to roll back federal protections for the polar bear cost the state budget approximately $1.5 million, the bulk of which came from retaining an outside law firm. Not only was the state utterly unsuccessful but it duplicated a suit already filed by the Alaska Oil and Gas Association and other industry groups.

Similarly, Alaska’s recently dismissed lawsuit seeking to invalidate the federal Roadless Rule governing more than 14 million acres of the Tongass and Chugach National Forests cost the state another $200,000.  These state cost numbers reflect only costs incurred by the state Attorney General. The U.S. Department of Justice likely spent comparable amounts of taxpayer funds successfully defending these state lawsuits, thus doubling the ultimate cost to public treasuries both in Alaska and the nation.

In addition, state costs are currently being calculated for Alaska losing its 2010 case seeking to conduct aerial wolf control in the federal Unimak Island wilderness, filed against the U.S. Fish & Wildlife Service; and in losing its 2011 case to overturn the National Oceanic & Atmospheric Administration’s endangered species listing for Cook Inlet beluga whales.

“Alaska would have had more environmental impact by dumping a couple of million dollars into a pit on the Governor’s residence front lawn and setting it on fire,” stated PEER Executive Director Jeff Ruch, noting that Gov. Parnell has not been shy about decrying “reckless lawsuits by environmental groups” while filing his own. “Public funds should not be used to subsidize political tantrums played out in court.”

A 2008 public records request by Steiner had revealed that the state’s own marine mammal experts agreed with the federal position that polar bears were in fact threatened due to shrinking Arctic sea ice. The Alaska legislature then appropriated $2 million to convene a “scientific” conference to gin up support for its stance against all federal ESA listings, but the conference was canceled.

Political intimidation in Alaska state service is not limited to scientists, however. In Alaska, the state Attorney General is a gubernatorial appointee. Thus, attorneys inside the state Department of Law are not in a position to exercise independent legal judgment about the soundness of arguments pressed by their employer. Gov. Parnell, a former ConocoPhillips executive, has been especially aggressive in pushing lawsuits against the federal government.

“These misguided lawsuits are making the State of Alaska into a legal laughingstock,” said Steiner, who also revealed that Gov. Parnell halted state planning for the effects of climate change. “In the polar bear listing case, the experts for the plaintiff (the State of Alaska) agreed with the experts for the defendant (the U.S.), and it was clear the state case was bound to fail,” he said. “These expensive episodes underscore the need for an independent, elected Attorney General to ensure that our state’s future legal filings are truly in the interest of citizenry of Alaska, and not simply the political interests of the current governor.”

Ironically, Sarah Palin’s Attorney General Talis J. Colberg, who filed the polar bear suit in 2008, recently expressed reservations as well about the political appointment of Attorney Generals in Alaska, writing: “I think it was a mistake to make the chief law enforcement officer of the state an at will employee of the governor…I believe Alaska would be better off with an elected attorney general.” Forty-three states now have elected Attorneys General.

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Look at state polar bear suit costs

See Tongass roadless rule suit costs

Read Talis Colberg essay

View suppressed views of state marine mammal experts

Revisit Alaska’s abandonment of climate change planning

How Many Snags Do Birds Need??

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With our discussions about burned forests and blackbacked woodpeckers, here are some views of the Power Fire, on the Eldorado National Forest. Initially, the wildfire seemed to be of mixed severity but, as the summer wore on, more and more insect mortality caused previously green trees to turn brown. After Chad Hanson took his appeal to the Ninth Circuit Court, this project was halted with about 75% of the dead trees cut. The court decided that not enough analysis was done regarding the blackbacked woodpecker, despite only 55% of the burned area in the project.

In this picture, seven years after it burned, most of those foreground snags were in a helicopter unit, with a fairly large stream buffer at the bottom. At least 5 times we marked additional mortality in that unit. Also important is the fact that we were cutting trees which still had green needles, using the new fire mortality guidelines of the time. As you can see, the density of snags should be quite sufficient in supporting multiple woodpecker families.

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This patch of snags was clumped, below a main road and above a major streamcourse.

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Another view of abundant snags within a cutting unit, and a protected streamcourse.

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You can see that both large and small snags were left for wildlife. After 6 years, surely some snags have already fallen, as expected. Not every acre can, or should, have birds on every acre. Since this is predominantly a P. pine stand, the combination of high-intensity fire and subsequent bark beetles caused catastrophic losses of owl and goshawk habitat, including nest trees. You can also see that reforestation is, and will continue to be problematic, with all that deerbrush coming back so thick.

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