Litigation

Time for litigating forest restoration projects has ended : Editorial from Az Daily Sun

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Here’s a link. Below is an excerpt.

The Forest Service helped its cause by finally releasing its rationale for picking the Montana company for the initial 300,000-acre contract.

— Pioneer would hire about 500 people,

— It could get started just seven to eight months after contracts were signed

— It would make a variety of products (furniture parts, molding, flooring mimicking hardwoods) that would be diversified enough to sell consistently during recessions.

— It would have the advantage of stable fuel costs in turning branches and fine matter into biofuel as proposed.

That didn’t convince Pascal Berlioux of AZFRP, who sent out a three-page single-spaced email on the day that administrative appeals were due listing the reasons he thought his company would be a better choice. Whether it was price, risk, technical expertise or marketability, Berlioux insisted his was the better proposal. Personally, he noted, he had put six years of his life into the project, and some of his fellow board members had put up their life savings.

But in the end, Berlioux did not appeal, saying the Forest Service had made a nebulous “best value” judgment that it was unlikely to overturn. For the forest’s sake and the health of its host communities, Berlioux did the right thing by not appealing, and we in northern Arizona owe him a big thanks.

That still doesn’t rule out possible legal appeals by the Center for Biological Diversity, Grand Canyon Trust and others with objections to the contract. Their main concerns appeared to be a fear that Pioneer would not be as collaborative a partner as AZFRP (it didn’t offer to pay for monitoring) and that it lacked relevant local experience. Also, its plan to convert biomass into cellulostic biodiesel fuel was untested, they said.

Those objections, however, amount to speculation. The reality is that both companies would have been good choices, but only one could win — there isn’t enough wood to support two wood processing mills over the next 20 to 30 years.

Each year of delay is another year that catastrophic crown fires could wipe out much of the forest resource and devastate local ecosystems. As it is, the Pioneer mill won’t be up and running for at least a year or more. There are no more legitimate excuses for delay, and we urge conservation groups to stay in the 4FRI process and see it through to a successful conclusion.

Note from Sharon: So what interested me was this statement: “The reality is that both companies would have been good choices, but only one could win — there isn’t enough wood to support two wood processing mills over the next 20 to 30 years.” Maybe not around Flag, but lots of other places there is. This seems to be one of the few places where there is more capacity than material.

Conservation Groups file lawsuit in Federal District Court to stop logging in Flathead National Forest

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What PCT Looks Like on the Flathead
PCT Flathead #2
PCT Flathead #3

A guest post from JZ…

Conservation Groups file lawsuit in Federal District Court to stop logging in Flathead National Forest

On a recent post Matt and I were discussing “frivolous” lawsuits. Matt correctly pointed out that a “frivolous lawsuit” is a legal term that could lead to disbarring of the lawyers and the case being thrown out of court. I suggested “misguided” may be a better characterization…and I’m sticking with that. Curious to see where others think this one falls.
Below are some excerpts from an AWR press release (I added emphasis in caps):
http://www.wildrockiesalliance.org/news/2012/0601flathPR.shtml
“Three conservation groups, the Alliance for the Wild Rockies, Friends of the Wild Swan and Native Ecosystems Council filed a lawsuit on May 29th, 2012 in Federal District Court in Missoula against the U.S. Forest Service and the Fish and Wildlife Service to stop the Flathead National Forest’s PRE-COMMERCIAL THINNING Project. The Project authorizes LOGGING of 3,650 acres across the Flathead National Forest in areas occupied by the threatened grizzly bear, bull trout, Canada lynx and critical habitat for lynx and bull trout, and along the North Fork of the Flathead River, a Congressionally designated Wild and Scenic River corridor. The LOGGING project was also approved as a categorical exclusion, preventing further analysis of its environmental impacts under the National Environmental Policy Act. “
“Michael Garrity, Executive Director of the Alliance for the Wild Rockies said, “The Flathead National Forest is moving ahead with this large LOGGING project in lynx and bull trout critical habitat without analyzing and disclosing the ecological impacts to the public.” “
“”The Forest Service is attempting to deregulate LOGGING from Congressional oversight and public participation…”
“Garrity concluded, “Congress requires the Forest Service to do three things when they plan massive TIMBER SALES, give the public an opportunity to participate in the decision, disclose to the public the potential impacts of the LOGGING, and give the public different alternatives to accomplish the purpose and need of the TIMBER SALE…”
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
So I was confused…is it a pre-commercial thinning project that cuts small trees to improve the health and vigor of the residual stand or is it a “timber sale” and “logging” project???
I consulted the dictionary:
log•ging (dictionary.com)

noun
1.
the process, work, or business of cutting down trees and transporting the logs to sawmills.
11.
to cut (trees) into logs: to log pine trees for fuel.
12.
to cut down the trees or timber on (land): We logged the entire area in a week.
verb (used without object)
16.
to cut down trees and get out logs from the forest for timber: to log for a living.

Then I consulted the decision:

Click to access 70985_FSPLT2_059305.pdf

(DM, pg. 2) “The areas included in this project do not contain trees of commercial size and will not produce merchantable wood products.” And “The diameter of the cut saplings/trees will range between 1” and 6” Diameter at Breast Height (DBH), with most of the cut stems being 2-4” DBH.”
Really??? PCT is “logging”??? That certainly stretches credibility and an interesting spin by Mr. Garrity. And he took offense to being called a “professional obstructionist.”
I sure hope his complaint didn’t characterize pre-commercial thinning as “logging”. One could argue that might be frivolous.
A copy of their appeal can be read here:
http://data.ecosystem-management.org/appeals/displayDoc.php?doc=VjFab1EyUXhjRmhTYms1cVpXNU9OVlJXVWxkYWF6RnhXak53VGxGVU1Eaz0=

The Power Fire, and the Blackbacked Woodpecker

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This helicopter unit experienced significant dieback, even as the fallers returned multiple times. The marking guidelines allowed for cutting trees with low crown ratios, and with the Forest Service getting projects together so quickly (six months!), the bark beetles hadn’t run their course, yet. In addition to the snag specifications in the project’s plans, you can clearly see that there are a great many more snags now, than the plans required. Also important in this is that snag of certain sizes had to be cut and flown out, as part of the fuels treatment (a HUGE expenditure!)  The Power Fire salvage project was halted by the Ninth Circuit Court, due to the new salvage marking guidelines, and a perceived need for more blackbacked woodpecker analysis. The cutting unit below was completed, though.

Also seen in the foreground is that nasty bear clover, which will dominate, until it is shaded out, or killed with herbicides. It is great to have this smelly carpet (AKA mountain misery) under a nice canopy but, in this case, it will hinder all trees from germinating and growing. Their roots can go 12 feet deep. Even the deerbrush is kept at bay by the bear clover.

www.facebook.com/LarryHarrellFotoware

Veterans, Seniors and Bugs

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Thanks to Bob Zybach for this..
Here’s a link to the entire letter.

The original purpose of the Equal Access to Justice Act (“EAJA”) was to protect
individuals and small businesses from an overzealous application of law by
federal agencies. According to testimony offered by members of the
House of Representatives in support of EAJA, the purpose of the bill was to
“equal the playing field” when American citizens had to file litigation against the
federal government. For example, Congresswoman Chisholm (D-NY)
testified that the bill encouraged an “affirmative action approach” to bring in
those who had been “locked out of the decision making process by virtue of
their income, their race, their economic scale or their educational limitations.”
Representative Joseph McDade R-PA stated that the bill would help to
improve citizen’s perceptions of his relationships with the federal
government because it would require federal agencies to justify their actions
and to compensate the individual or small business owner when the
government is wrong. The intent of EAJA was to curb unreasonable and
excessive bureaucratic application of regulations. If that is the case, why does
the federal government pay a significantly greater amount per hour to
an attorney who is representing a bug than to one who is representing a
veteran?
I have heard a lot of excitement about the recent FOX news story
Environmental groups collecting millions from federal agencies they sue,
studies show, as well as the Press Release from Congresswoman Lummis
and Senator Barrasso describing Two New Studies Identify Major Flaws in the
Equal Access to Justice Act: To support the nation’s veterans, seniors and small
business, Lummis and Barrasso call for swift passage of Government Litigation
Savings Act. These numbers support that premise. Call your Congressmen
and Senators. It is time to show our veterans and seniors that they are more
important to the federal government and the to tax paying citizens than bugs.

The Power Fire, Six Years Later

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This wildfire, on the Amador Ranger District, of the Eldorado National Forest. was sparked by crews cutting hazard trees along powerlines. I was a Sale Administrator, detailed to help salvage timber and accomplish contract work over 55% of the burned area. New marking guidelines, ordered by the courts, were first used on this project. While the plans survived a lower court challenge, the infamous Ninth Circuit Court decided that the new guidelines were “confusing” and more analysis regarding the blackbacked woodpecker was needed.

Here is what one of the cutting units looks like today. Choked with deerbrush, with not much in the way of conifers established.

This picture shows the striking contrast of Forest Service, versus private timberlands. You can clearly see the property lines and the section corner. What you cannot see is the accelerated erosion that came off the private lands, impacting the road at the bottom of the picture. Between the deerbrush and the the thick bear clover, conifers have little chance to recover, and a re-burn might be in the future for this patch of Federal land. The upper tract of Federal land seems to have no standing snags left, due to blowdown. The rest of the area seems to be choked with snags that died since harvesting was completed. At least SOME of the fuels for a future wildfire have been significantly reduced.

This area has a history of Indian occupation, and the forest still shows it. The bear clover re-grew and covered the bare soil within 6 months. Today, people would be hard-pressed to find ANY logging damage, on this side of the fire area. What really amazed me is that this project has ALREADY suffered a re-burn. The fuels reduction definitely saved the remaining old growth from burning to a crisp. This forest has its resilience back, has a better species composition, and seems ready for a regular program of prescribed fire.

As you can see, the light and the weather didn’t cooperate. I’m sure I will be going back to capture some more images, and to compare them to the photos I took six years ago.

AWR Responds to Timber Industry Ads: No ‘lawless logging’ in Montana

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On Wednesday RY Timber, Pyramid Mountain Lumber, Roseburg Forest Products and Sun Mountain Lumber took out this full-page advertisement in at least six Montana newspapers, including the Helena Independent Record, Missoulian, Kalispell Daily Interlake, Great Falls Tribune, Montana Standard and Bozeman Chronicle. According to Ad reps, the retail cost of the advertisements likely ran between $27,000 and $31,000. 

Among other things, the timber industry Ads called for 1) scrapping the entire Forest Service public appeals process and 2) exempting many timber sales in Montana from judicial review.  These are the same timber companies pushing Senator Tester’s mandated logging bill, the Forest Jobs and Recreation Act, which would require logging on over 156 square miles of the Beaverhead-Deerlodge and Kootenia National Forest over the next 15 years.  More information on the timber industry Ads can be found here.    Today, Mike Garrity – Alliance for the Wild Rockies executive director and a 5th generation Montanan – responds to the Ad with this guest column in the Montana Standard.
________________

No ‘lawless logging’ in Montana
By Mike Garrity

A handful of timber corporations recently took out full-page ads statewide to criticize the Alliance for the Wild Rockies for doing what we do well — working to keep Montana “high, wide and handsome” as Joseph Kinsey Howard famously wrote.

We protect public land from corporations and government bureaucracies that want to log public lands without following the law. To put it simply, they want to return to the “good old days” before we had any environmental laws and corporations such as the Anaconda Company called all the shots.

As a fifth generation Montanan, I clearly recall the days when Silver Bow Creek ran red with mine waste and the Clark Fork River was a dead, sludge-filled industrial sewer. And it was not that long ago when you had to turn your car lights on in the middle of the day in Butte because the air was so polluted. These were also the days when our forests had little big game and native fish were beginning to vanish because of massive clearcutting.

Today Montana has some of the best hunting and fishing in the world. The state recently celebrated the return of native westslope cutthroat trout to Silver Bow Creek and Milltown Dam no longer holds millions of tons of toxic waste seeping into the groundwater.

Do we really want to go back to these good old days of cut-and-run where there are no environmental laws? Montanans love our national forests, which belong to the American people, not to the career bureaucrats in the Forest Service or the CEOs and stockholders of timber corporations.

Yet, in their ads, the timber corporations clearly laid out their goals for the conditions and laws they want applied to their personal profit-driven extraction of public resources. In their own words, the timber companies want to “scrap the entire Forest Service Administrative Appeals Process,” “exempt from judicial review those timber sales which deal with trees that have been killed or severely damaged by the Mountain Pine Beetle,” and “amend the Equal Access to Justice Act by requiring a cash bond in these types of administrative appeals and lawsuits.”

In plain language, what that means is that these corporations no longer want citizens to have a voice in how our public lands get used or abused. But that ignores both the history and intent of law and policy on public lands management.

Congress placed citizen suit provisions in virtually all federal environmental laws because citizens are often the only group willing to police the government. As the Federal Ninth Circuit Court of Appeals famously wrote, citizens “stand in the shoes” of regulatory enforcement agencies to enforce the law — and to do so without any prospect of personal benefit. If someone throws a brick through a window, the police would enforce the law. But when the federal government breaks the law, citizens are often the only enforcers.

Unfortunately a disturbing trend has appeared as big environmental groups such as the Montana Wilderness Association and The Wilderness Society increasingly take foundation money to “collaborate” with timber corporations. And much like the Vichy French helped the Nazis occupy France during WWII; these collaborators now have to face the harsh and shameful legacy of what they have done and continue to do.

Behind it all is the very simple truth now revealed by the timber companies’ own damning ads: these corporations want access and the subsidy to extract timber resources from public lands unencumbered by environmental laws. Their profit, our loss, and a return to the bad old days of corporate domination of Montana’s lands and people. But Montanans don’t want to return to those days when corporations like the Anaconda Co. controlled public policy and the rivers ran red with mine waste. We want a sustainable supply of clean water, fish, wildlife and timber.

It’s time to tell these corporations and their collaborative partners that the days of rape and run in Montana are over. Montana is worth fighting for, which is exactly what the Alliance for the Wild Rockies intends to continue to do.

Mike Garrity is executive director Alliance for the Wild Rockies.

Collaborative Forest Management: What the FACA?

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Recently, one of the main the topic of conversation here at NCFP has been about collaborative forest management. We have wandered though several posts and many comments into the controversy surrounding, in particular the Montana Forest Restoration Committee in Montana and the Tongass Futures Roundtable in Alaska. In these discussions, there have been those sitting just beyond the perimeter of a collaboration who feel that something is amiss. Concerns often expressed by local environmental groups include, “Who is at the table, collaborating, and who is absent?” That is, Is the committee biased? If so, what type bias? On the other side of this divide are those who champion collaboration, particularly some National environmental groups who seem tired of litigation battles and stalemate, and to prefer more direct forms of engagement. These would-be collaborators don’t seem too uncomfortable with the make-up of collaboration committees. Because they are well-represented?. Sometimes they look askance at those who challenge the validity of specific collaborations, even accusing local environmental groups of being obstructionists. Local environmental groups counter, and accuse the Nationals of “selling out,” becoming part of the problem that is often labeled “Washington D.C.”

As I’ve watched and participated in surrounding discussion, I’ve wondered: Whither FACA? The Federal Advisory Committee Act FACA) was passed in 1972 in an effort to reign in federal agency ‘capture’ by special interest groups, particularly corporate interests. By the late 1990s there was substantial interest in collaboration in natural resource policy, but FACA was seen by many as a barrier to effective collaboration: Too bureaucratic, too heavily-laden with process requirements. But collaborators seem to have forgotten, else never understood a little facet of the law: an advisory committee doesn’t need to be declared to be a FACA Committee to be held accountable to at least some aspects of FACA law.

A good overview of this FACA problem/opportunity can be found in “The Federal Advisory Committee Act and Public Participation”, 1999 (pdf) publication by Resources for the Future. The act itself can be found here. Another useful reference is “The Federal Advisory Committee Act and Its Failure to Work Effectively in the Environmental Context”, (pdf) 1995, Boston College Environmental Affairs Law Review. After reading the latter, I was about to give up on FACA, in part because the courts had failed pretty much to allow people to challenge federal agencies under FACA. And the prevalence of closed-to-the-public advisory committees was still substantial in 1993:

FACA has … failed to fulfill Congress’s goal of opening all advisory committee meetings to the public. Closed-door advisory committee meetings still prevail, despite FACA’s mandates that meetings be open to public participation.218 The GSA, which monitors advisory committee activity throughout the government, reported that, in fiscal year 1993, there were more closed and partially closed advisory committee meetings (2,225) than open meetings (2,162).219 It is clear from these statistics that a substantial amount of advisory committee work is still done in private, away from the public scrutiny and participation that would help limit the influence private interest groups have on the agencies they are advising.

In short it looked like those finding themselves on the outside of collaboratives couldn’t find much recourse via the courts. Then I found an interesting little decision (pdf) rendered after the Idaho Wool Growers Association successfully challenged the Forest Service in Idaho, 2009. In Judge Winmill’s decision I saw a ray of hope that indeed FACA challenges might still reign-in committees that bias agency decision-making. In particular I found this interesting:

Memorandum Decision and Order – Page 18
FACA defines an “advisory committee” as “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government . . . .”

Memorandum Decision and Order – Page 19-20
“When a committee is established to provide expert summaries or interpretation of technical data, their reports can be ‘in the interest of obtaining advice or recommendations for . . . one or more agencies.’” . . .
“Even though [the committee] provided the USFS with only narrative summaries of scientific information, and made no policy recommendations, the [committee] drafts and the final assessment provide the framework, context and information that the USFS will rely on in making policy decisions.”

Memorandum Decision and Order – Page 20
FACA imposes a number of requirements on advisory committees. See, e.g., 5 U.S.C. App. II, §§ 2, 5, 9-14 (records must be made available for public inspection; charter must be filed; upcoming meetings must be announced; meetings must be held in a public place; minutes must be kept; attendance must “be fairly balanced in terms of the points of view represented” and may “not be inappropriately influenced by the appointing authority or by any special interest”). Typically, a close examination of each requirement, contrasted against the circumstances in a particular case, is warranted when determining whether a FACA violation occurred.

So FACA may indeed be ‘in play’ in broader contexts than have heretofore been considered by many. That is, it matters not so much that FACA committees be chartered by agencies. What matters is what the players do, how they deal with the public interest and how they vet various interests/positions. Post Judge Winmill’s decision, it looks like the courts may finally be listening. Or not! If the courts are listening, we may be in for more FACA lawsuits to test these waters.

What does it all mean? How does and agency, say the US Forest Service, go about getting workable committees (defacto FACA committees) that can come to any agreement or give advice that is not all over the map?

I think that the answer lies in an area that the Forest Service is so far loathe to go. That area is the area of multi-scale adaptive governance that includes policy development as well as program and project management. The Forest Service seems to want to hold policy development to itself, yet to collaborate on site-specific watershed projects. That type arrangement gives no space to deliberate upon and enact the type preservation sought by John Muir naturalists, who want intact ecosystems for say, wildlife—big home ranges for large carnivores, protected corridors for migration, etc. So the whole idea of local-only collaboration is a nonstarter to many environmentalists.They want to deal with matters of broader scale and scope. But there is no such forum available in the 2012 NFMA rule. At least that’s the way I see it. No wonder environmentalists cry fowl. When will the Forest Service warm up to adaptive governance, with its emphasis on collaboration and adaptive management? Not likely anytime soon. So, for this and other reasons, we’ll just see what shakes out in FACA court room battles. When dealing with extant collaboratives, we are left to wonder: What the FACA? Or maybe just WTF?

Perhaps the answer, or part of it, has already been offered up in a NCFP comment from Terry Seyden, if only ALL would/could operate in good faith and keep the public interest in mind:

In my view, there is just no substitute for ongoing substantive dialogue to help the agency truly understand what the real underlying interests of various constituents are. Having a rich two way dialogue also assists the agency in creatively exploring all available options for meeting agency goals while trying to meet sometimes competing interests. … [T]o be legitimate and effective, any collaborative effort has to be well grounded within a larger public involvement strategy that gives the larger community of interests substantive opportunity to comment on and influence collaborative recommendations BEFORE decisions are reached.
Of course for any of this to work, the process has to be seen as credible and fair, both in terms of who directly participates in a collaborative group and how those “not at the table” have meaningful opportunities to contribute before decisions are made. While good faith among all interests is not a requirement for this approach to be successful, good faith on the part of the Forest Service or other third party convening any collaborative effort is absolutely essential.

This is echoed by An Optimist:

A good process… will seek to represent the ideas or interests of even non-participating groups. The challenge, however, is that a collaborative process is a learning process ….

In a Michigan Law Review article, Daniel Walters (pdf) seems to agree with both. He advocates for a “deliberative approach” to FACA. It all sounds right to me.

The challenge, for all of us is to be ever-vigilant to ensure that ‘collaboratives’ are indeed operating in good faith, and in the public interest. But if the many of the comments in the posts linked just below are an indicator, many such collaboratives in the past may not have been acting in good faith and in the public interest. Also the Forest Service needs to make sure that collaborative fora are available at appropriate scale to deal with relevant issues—not just at the local level. So let’s keep talking, keep challenging emergent collaboratives and broader policy both in terms of resource-related policy, programs and projects and in terms of collaboration design and operation. And let’s talk here about what I missed, what I messed up, and so on re: FACA, collaboration, and US Forest Service policy and planning.

Some related NCFP collaboration posts of interest:
Odd bedfellows try collaborating to resolve conflicts- from E&E News, March 15, 2012
“Collaboration on natural resource management is divide and conquer” The Wildlife News, March 11, 2012
New Research: Who Litigates, Who Collaborates and Why?, March 7, 2012
Two Views of the Tester Bill, December 22, 2011
Collaboration Can’t Fix What Ails Public Forest Management, October 6, 2011
Colt Summit- Garrity EditorialOctober 6, 2011

Sequoia National Forest Plan Set for Updating

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The Sequoia suffers from many blockades to sensible forest management and protection. With the only mill within more than 100 miles away, teetering on the brink of bankruptcy, and being hamstrung by unreasonable diameters limits for harvestable timber, as well as having the Giant Sequoia National Monument to manage, they face a very long uphill battle to update their 24 year old Forest Plan.

http://www.recorderonline.com/news/usda-52174-plan-vilsack.html

Also opposing them is the Sierra Club, who continue to portray the Forest Service as loggers of ancient Giant Sequoias. They wish that all 300,000+ acres of the Giant Sequoia National Monument be free of all logging projects, despite there being only about 10,000 acres of already protected Giant Sequoia groves within the Monument. The McNally Fire nearly killed the world’s second largest tree, when it was allowed to burn for weeks. The Sierra Club is quite happy to let their followers think that the Forest Service will cut the sequoias down, and that clearcuts and the cutting  of big trees will happen. The Sierra Club wants the Monument to be “un-managed”, just like the adjacent Sequoia National Park. They also don’t realize that the Park Service doesn’t follow the same rules on prescribed fires that the Forest Service does. You cannot solely use prescribed fires to manage the fuels build-ups of 80 years, on hundreds of thousands of acres. Besides, the California Board of Air Resources don’t have enough burn days, when prescribed fires would be “in prescription”. The Park Service is well known for losing their management fires, which can be set during high temperatures and dry conditions.

This may be one of the most contentious new Forest Plans under the new Planning Rule. I wonder how much it will change when the only lumber mill in southern California goes bankrupt.

Sequoia Forestkeeper II, of Probably Many Posts

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From Bob Berwyn here:

By Bob Berwyn

SUMMIT COUNTY — A federal judge in California this week ruled that the U.S. Forest Service can’t simply drop a post-decision appeals process for logging, forest health and other projects approved under a categorical exclusions, which is a streamlined approval process for smaller projects. In those decisions, the appeals process is replaced with a pre-decisional objection period, which enables people to raise concerns before the final decision is made. Read the decision here (PDF on Scribd.com) or at the end of the post.

That means citizens or stakeholder groups across the country once again have the right to challenge certain Forest Service projects after the final decision has been made by a district- or forest-level official.
The agency has often used the categorical exclusion process in recent years to gain speedy approval for projects relating to the pine beetle epidemic. While many of the projects aren’t controversial, some have been.
Absent a formal administrative appeals process — which involves review by forest officials higher up the chain of command — citizens and environmental groups must go directly to court to challenge a project.
In some regions, the agency has done a good job of involving stakeholders in the process early to help shape decisions that have community support. But that’s not the case all over the country, and having the opportunity to appeal enables people to challenge bad decisions without the expense of going to court.
On the other hand, environmental groups have sometimes abused the appeals process to obstruct and delay projects. Those tactics led frustrated Forest Service officials to look for shortcuts. But fundamentally, appeals have always helped ensure that citizens have some recourse to challenge the agency when it comes to what are often irrevocable commitments of public resources.
In his decision, U.S. District Court Judge Lawrence O’Neill also ruled that the agency must give adequate notice for its decisions on categorical exclusion projects, as well as provide the public with an opportunity to comment.
The ruling, issued by a U.S. District Court in California, is a skirmish in the long-running regulatory and legal battle over the Forest Service’s desire to cut red tape, sometimes at the expense of public involvement and adequate environmental review.
The Forest Service fired the first salvo when it tried to eliminate administrative appeals altogether in an attempt to speed up approvals for projects. In response, Congress in 1992 passed the Forest Service Decision-making and Appeals Reform Act.
“Congress said, we want to ensure that you’ve heard all the voices … and that you use the appeal process to repair your mistakes,” said Forest Service Employees for Environmental Ethics director Andy Stahl, explaining that he lobbied for the appeals reform act.
That law states very clearly that the Forest Service must include an appeals process for any decision or project that implements a forest plan.
Stahl said appeals help make the Forest Service decision-making process accessible to the general public, giving citizens a chance to influence decisions without having to hire a lawyer if they think a project has some fundamental flaws. And based on the agency’s track record of losing appeals and court cases, that happens as often as not.
In the bigger picture, Congress just recently passed a law that eliminates appeals for all decisions approved under Environmental Assessments and Environmental Impact Statements, instead replacing those appeals with pre-decisional objection periods.

Here’s the link to the decision (thanks, Bob!)

Sharon’s note : I’m not sure what Andy means by “losing appeals and court cases” and “that happens often as not.” How does that fit in with the concept of “appeals are just a higher level review and often just restamp the decision”? (Not that Andy said the latter, but I think someone has on this blog.) I don’t think that quantitatively appeals are 50/50 affirm/ remand nor are court cases 50/50 (although I don’t have the numbers at my fingertips). Andy- did I miss something or was I excessively quantitative in interpreting “as often as not” as 50/50?

For our mutual education and information on this subject, I propose we each pick a district and look at which actual CE’s are in progress to get a picture of how many of them actually deal with timber harvest compared to other kinds of actions, which are “implementing the forest plan”; so I picked Trabuco Ranger District (the name just came to me) and here’s a link to the current SOPA (schedule of proposed actions).

I found a decision expected in April (maybe not anymore?) :
“The Descanso Ranger District proposes to authorize reissuance of a special use permit for maintaining a club for use by the San Diego Chapter of the Sierra Club, located in the Laguna Mountain Recreation Area. ”

Or this one right below it, fortunately already completed:
“Eradicate with herbicide invasive Spanish Broom along the roadway to improve visibility, clear the roadway for vehicle passage and reduce fire risk.”

Adding notice, comment and appeal to CE’s seems like a great thing for the public, but it seems to me that given the kinds of CEs that are out there, reasonable people could disagree about the value added compared to the taxpayer expense.

I invite you to “pick a district” check out the SOPA, and see what you find.

Forest Service appeal regs exempting CE’s dinged again by federal courts

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A federal court ruling yesterday one again enjoined the Forest Service regulations that exempted Categorical Exclusion (CE) decisions from notice, comment and appeal.  According to one of the attorney’s who worked the case,  “This certainly means any new CE’d decisions must be subject to notice, comment and appeal – beyond that, and how this will affect (or be affected by) any new regulations regarding the HFRA-like rider, is TBD.”

UPDATE: Just to be clear, here is the Summary Judgment Decision on Merits of Plaintiffs’ Claim.  Also, the same Court issued this Summary Judgment Decision on Jurisdictional Issues.