Litigation

Forest Wars: From Multiple Use to Sustained Conflict

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When we sometimes tire of our “word wars” here, we need to remember that they are just one manifestation of broader holy wars being waged in and around our public lands.

Long Road to War

Utilitarian ideology has been a mainstay in forest policy development since the early 1900s when Gifford Pinchot and Bernhard Fernow introduced forestry into American government. Samuel Hays’ Conservation and the Gospel of Efficiency, alongside David Clary’s Timber and the Forest Service both build on self-righteousness to the point of religious fervor among many who chose to work on the land, notably foresters and engineers, and their evangelists (pundits, professors, etc). Similar books could be written — likely have been — talking about the religious-like fervor of the environmental community. [See, e.g. Environmentalism as Religion, Wall Street Journal, 4/22/2010.]

For many years, what later emerged as forest wars were never more than disagreements between mainstream forestry practitioners and malcontents like John Muir, Aldo Leopold and Bob Marshall. Such “disagreements” were deep-seated ideological splits, but contrarians of that era didn’t have the political/legal muscle to make for war. Later, however, the very same disagreements intensified into ideological war with the dawn of the environmental movement.

Environmentalists gained traction in forest debates, appeals, litigation, etc. after people began to wake up to environmental concerns in the late 1960s. The first of a series of Wilderness Acts became law in 1964. The Endangered Species Preservation Act of 1966 predated and set a stage for the Endangered Species Act of 1973. Earth Day began in 1970. In 1969 the National Environmental Policy Act (NEPA) became law. In 1976 The National Forest Management Act (NFMA) and the Federal Lands Policy Management Act added to the mix. The environmental battles gained legal footing. But it is not clear that the legal footing was ever recognized, or at least accepted by the US Forest Service. At least if actions speak louder than words, we must question whether the Forest Service and its USDA overlords ever accepted these legislative mandates.

Disdain for legislative mandates runs deep, but there is an alternative path — a road not taken. Sally Fairfax set a stage for continued disgust for NEPA among forest practitioners with her 1978 Science article titled A Disaster in the Environmental Movement. Countrast Fairfax’s view with that from Jim Kennedy’s NEPA note: Legislative Confrontation of Groupthink.

Environmental Wars

Beginning in the 1970s, environmentalists waged war on timbering, grazing, road building, mining and oil & gas development, developed recreation, and more. Warriors on the “enviro” side typically vilify corporations, else government “lackeys” for the corporations. Warriors on the practitioner side vilify the enviros. In war there is little room for thoughtful discussion or dialogue. The rift between the two camps will likely remain very deep for a long time.

It is not clear that the Forest Service ever gave much heed to the “legislative confrontation of groupthink” ideas in NEPA. It seems that the Forest Service has been evading/avoiding NEPA responsibilities from the get-go. They continued “go-go timbering” up to the point of shutdown following the Monongahela and Bitterroot controversies. After things were sort-of opened up again via NFMA, the Forest Service wanted “once and for all NEPA”, i.e. the forest plan would be a catch-all NEPA container, allowing all projects to flow without any further NEPA review. When that didn’t work, the Forest Service played various shell-games pointing either upward (e.g. forest plans, regional plans) for NEPA compliance, else downward toward projects depending on what was being challenged. Finally, during the Bush/Cheney period, they sought to “categorically exclude” as much as possible from NEPA review.

In 1999 I wrote up a little thing titled Use of the National Forests. I noted four distinct periods of Forest Service history: Conservation and “Wise Use” — 1900-1950, Multiple Use — 1950-1970, Sustained Conflict — 1970-2000, and Collaborative Stewardship — 2000+. Although we might quibble over the dates as well as the categories, I now realize that I was over-optimistic as to the dawn of the Collaborative Stewardship era. At minimum there was a dramatic backlash — not necessarly against collabortion but clearly against environmetalism — commencing with Bush/Cheney Administration and their ABC (“anything but Clinton”) campaigns. The Bush/Cheney war on the environment was a reenactment of an earlier war waged by the Ronald Reagan Administration.

Bob Keiter (Univ. of Utah Law School) chronicled the emergence of both ecological awareness and collaborative stewardship in Keeping Faith with Nature. Keiter later chronicled the Bush/Cheney reactionary footnote in a 2007 article, Breaking Faith with Nature. Taken together, the two trace certain aspects of emergent gospels that were part of the ideological wars. The former traces what I’ll call the “ecosystem awareness” movement in the Clinton era of government, and the second the Healthy Forests Initiative and the Healthy Forests Restoration Act reactions during the Bush/Cheney era.

An era of “collaborative stewardship” may yet be emerging, albeit slowly and as already seen, with pushbacks. Enviros are still quite leery of “collaborations” and high-sounding agency rhetoric. They are warriors, after all. So the wars are not yet over, and may not be for a very long time. Timbering continues, albeit a a much lower volume than in the go-go days, and reframed as “ecological restoration” or “forest restoration”. New forest evangelists appear on the stage. Now we have both Wally Covington and Jerry Franklin preaching the gospel of forest restoration. I’ll leave it for further discussion as to how the two brands compare, and as to who buys into one, the other, both, or neither.

Other Wars

Even if wars between environmentalists and industrial and government practitioners were to ever end, these are just the tip of an iceberg of forest wars. We must add in the budget and staffing wars (hereafter budget wars) that have been ongoing in the Forest Service for a long time. Timber and Engineering reigned supreme in budget wars for many years, particularly after World War Two and the housing boom that fed rapid increases in timbering and associated road-building after WWII. Recreation, Wildlife, Soil and Water, even Fire, Personnel (later, “Human Resources”), Planning, Budget, Fiscal, State and Private Forestry, etc. were always struggling for funds. After go-go timbering days were a thing of the past — i.e. Environmentalists effectively shut down “go-go timbering”, Recreation and Fire gained an upper hand in budget wars. Somehow Engineering always seemed to keep its share of the money. [Note: Someday, maybe I’ll get these budget categories approximately right. For now, they are “good enough for government work”]

Finally — not trivially — Public Lands Wars have raged more of less continuously for many years. Remember the “Sagebrush Rebellion” and the so-called “County Supremacy Movement”? Now those have transformed into more of a “States’ Rights” movement. In all cases, part of the action has been an assault on federal lands.

I’ve probably missed some of the “wars” here. But if I’ve captured any of this even partially correctly, the landscapes, biophysical and political, have been transformed in the process. Some argue, as did Fairfax way back when, that the legal-administrative gridlock that has been a reality in federal lands management during the last 30-40 years, has done significant harm to the environment, and only resulted in wasted paper (EISs and dollars/time spent on forest planning, project planning, related NEPA work, appeals and litigation). Others like me argue that sometimes it is necessary to grapple with vexing social issues, even wicked problems in a very public way. Such “civic discovery” is a necessary part of a working democracy. Would that we could move from “war talk” to “fierce conversations“.

Related:
NEPA is Not the Problem, Forest Policy – Forest Practice, Oct 2007
The Blame Game

Is A New Rule Worth It?

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I went back and looked at the 2009 Notice of Intent today to refresh my memory regarding why implementing a new rule is so important to the Forest Service. From the NOI:

Developing a new rule will allow the Agency to integrate forest restoration, watershed protection, climate resilience, wildlife conservation, the need to support vibrant local economies, and collaboration into how the Agency manages national forests and grasslands, with the goals of protecting our water, climate, and wildlife while enhancing ecosystem services and creating economic opportunity.

I’m wondering, what is it about the existing rule that doesn’t allow the national forests to do this?  While the current language might not be very good at requiring some of these things, it certainly doesn’t prohibit them.  Any national forest is free to write a plan that attempts to do all of these things.

Sure, current requirements for things like designating and monitoring management indicator species (MIS) don’t work as originally envisioned and probably are largely as waste of time and money.  But most forests have figured out apporaches that can survive a legal challenge.

Some forests such as the National Forests in Mississippi are developing plans right now that meet the existing rule requirements while incorporating new approaches such as a framework for ecosystem diversity. The rule doesn’t require it, but it makes sense and has widespread support.

What challenges will a forest developing a plan under the new rule face?  How about legal challenges to the list of items in Martin’s post “We’ll Consider It” ?

Does the forest plan appropriately consider “various stressors or impacts?” How about “the physical (including air quality) and biological integration of the terrestrial and aquatic ecosystems within a landscape.” How well does the plan take into account “other forms of knowledge”, and so on down the list?

All of these points will be debated in the courts, just as MIS, viability, and monitoring have been since NFMA was signed into law. We won’t know what they really mean until the judges tell us.

Dave commented on Martin’s post  that:

In talking with two FS planning directors earlier this week, both seemed more intent on fixing “planning” via rule implementation than in fixing the “rule.” This is unfortunate in my estimation.

The “rule” ought to have framed things up for whatever follows re: national forest management. Instead, it appears that the rule development process is now largely viewed by many in the FS as a “throwaway,” so that they can get on with “God’s work” whatever the flavor of that might be this year.

I agree that it is unfortunate. It really is time for a new rule.  From where I sit, I would like to see a rule that goes  further in terms of establishing the kind of adaptive management approach that Dave talks about. I would like to see a rule that speeds up the process and eliminates some of the requirements that most of us agree don’t make sense anymore. I would like to see a rule that requires all of the considerations in Martin’s list and perhaps a few more.

But if I were a beleaguered forest planner, I might prefer to take my chances with the devil I know rather than one I don’t.

Jack Ward Thomas on the Role of DOJ and Settlements

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This cartoon is from Stu’s Views and used with his permission.

This post is another on some of the advantages and disadvantages of use of litigation in resolving environmental conflicts, and so let me clearly reiterate my position. I am not anti environmental law. I am not against the use of courts to decide when the government breaks the law. I do think we could have better and cheaper quality control on government decisions and documents than appeals and litigation. I am for consideration of different ways to reach desirable policy outcomes, as well as the costs and benefits (as well as opportunity costs) of each approach. I would argue that the courtroom is not always the best place to resolve policy or environmental disputes, for a variety of reasons, and I will try to describe these reasons through a series of posts as time permits.

When people litigate the Forest Service, the case is defended by the Department of Justice. So the discussions tend to be between the Forest Service, the Office of General Counsel, the plaintiffs and the Department of Justice. You can see an opportunity for a conflict concerning a certain project in a certain geographic area, where the public has weighed in throughout the NEPA process, to be effectively decided (through settlement) by individuals, mostly attorneys, who see the project through the legal lens.

In my observation, people bring different lenses through which they see environmental disputes. Let’s take a grazing case. There are the local professional lenses of the range conservationist and the local wildlife biologists, there are the local community lenses, the lenses of different scientific disciplines, and the lenses of different lawyers. By restricting the ultimate decision to those who look at the world through the legal lenses, I would argue that you restrict the choices of dispute resolution by leaving out potential solutions only visible to those with other lenses than legal.

Now, I am not saying that anyone’s lens is individually “correct.” It is like the old story of the blind man and the elephant. The elephant both is, and is more than, the sum of all the people feeling the tusk, the foot, and the ear. But any effort to feed an elephant would not work unless someone were aware of its mouth.

But that is just my observation, and my data points are fairly restricted. Let’s look at what Jack Ward Thomas, the former Chief has to say about this.

These quotes are from the 2004 book “Jack Ward Thomas: the Journals of a Forest Service Chief. Thanks to Matt, I found it on Googlebooks here and at least part of the book can be searched.

Unfortunately, I couldn’t copy it, so had to retype. Any other ideas out there to obviate retyping would be appreciated, and any mistakes are solely mine.

P 132

One of the most stunning facts that I have learned over the past year is that, in its ability to independently determine whether or not to proceed with any legal activity, the Department of Justice wields the greatest capacity to set policy of any agency of the government. I naively assumed that the chief of the Forest Service made the decision as to whether to pursue a court action. Not even the undersecretary or the secretary makes those decisions. Such can merely request and suggest. The Department of Justice decides- the agency can proprose and the Department of Justice disposes. That power is not well understood even by students of the internal workings of government. If the policy-setting power of the lawyers in the Department of Justice were well understood, I don’t think anybody- Congress, the persons affected, or politically appointed agency administrators- would appreciate that fact.”

P 232

“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.

So that was JWT’s view. For my smaller sample, I see that DOJ is willing to settle, at least in part, because that is how their work is incentivized. When we quantify performance (one of my pet peeves, albeit possibly a necessary evil) we sometimes look for what we can observe (cases settled) rather than what is a judgment call (excellence in policy outcomes). What we incentivize is ultimately what we get, for good or ill.

Most cases I see are brought by environmental groups, so we don’t have to go any farther than incentives and the proportion of cases to explain the behavior that Chief Thomas takes issue with.

In response to Martin’s previous point in a comment here :

“why does industry use of litigation not get nearly as much attention in the context of the ESA? I bet a majority of the active ESA cases right now, or in the recent past, are industry-based challenges trying to undo critical habitat designations.”

I think that this is a difference between looking at the overall issue of “ESA and the courts” compared to “FS cases that invoke ESA.”

In the family of cases that most Forest Service people see, most NEPA/NFMA/ESA cases are brought by environmental groups. Other litigation tends to be around round lands or water rights issues and also settles disputes, but they tend to be more overtly legal disputes, and not so much land use/allocation/practice disputes.

The latter kinds of disputes are the ones where one might argue that a broader range of public interests should play a role in the resolution of the conflict. To summarize, then, by determining the solution to land use conflicts through settlement, we may be missing certain points of view that could lead to better policy outcomes. There may also be a concern about the public being involved in decisions about the management of public land at these points, but I will leave that for the political scientists.

9th Circuit Appeal Decision Allows More Intervenors

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See “Court Ruling Opens Door for Intervenors in Western NEPA Disputes” in NY Times here.

Previously “Under the San Francisco-based 9th U.S. Circuit Court of Appeals’ “federal defendant rule,” anyone other than the federal government was barred in most instances from defending claims under the National Environmental Policy Act (NEPA), the main legal mechanism for challenging government actions that affect the environment. ”

The rule, unique to the 9th Circuit, was frustrating for business and recreational interests in particular, which thought their voices were not always being heard in cases between environmental groups and the government.

Environmental groups had largely stayed neutral on the question of whether the rule should be kept and have downplayed the importance of the case. That is because, while the rule might help them in some cases, in others, it does not.

The ruling will have considerable consequences in the environmental context because the 9th Circuit’s jurisdiction includes the nine Western states, and its caseload therefore includes a substantial number of environmental cases in which the federal government is the defendant.

The rationale behind the rule was that parties seeking to intervene did not have a “significantly protectable” interest because NEPA is a law that only binds the federal government.

Writing for a unanimous court, Judge Barry Silverman said the rule “ignores our traditionally liberal policy in favor of intervention” and “fails to recognize” the fact that private parties can show a protectable right,” he added.

The dispute that led to the ruling focused on efforts by the Magic Valley Trail Machine Association to intervene when the Wilderness Society and Prairie Falcon Audubon Inc. sought to challenge a Forest Service decision concerning motorized travel in the Sawtooth National Forest in Idaho.

It seems mildly odd to me an idea unique to one circuit and one that seems ultimately to be questionable, lived as long as it did (since 1989?). I wonder if there should be time limits on courts responding to appeals, as there are for agency administrative appeals? Here is a link to the decision. I seem to remember a legal maxim along the lines of “justice delayed is justice denied.”

Beaverhead Deerlodge- Another “Who’s At the Table?”

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Here’s a link to a newer lawsuit on the Beaverhead Deerlodge plan.

County Commissioner Mike McGinley said the Forest Service’s plan included wilderness areas that were never before considered and don’t meet the criteria for the highest level of land protection under federal law. And he said the plan, which guides management of the 3.3-million acre forest, was crafted after closed-door meetings between then Beaverhead Forest Supervisor Bruce Ramsey and the partnership members.

It seems like once again the issue is who was at the table. Is this an argument for formal advisory committees which include governments? Where should cooperating agencies and others fit? I hope that folks in Montana will share their insights.

Who’s at the Table and Who Decides?

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Observing the stories in the press on our favorite topics over the past two weeks, I found a common set of questions that I hope can illuminate the controversies. ”Who’s at the Table and Who Decides?” There is another thread, in some of these stories, of the appropriate role of state and local governments.

In this post, we’ll examine the settlement of case against four forest plans (82 Rule) in southern California.

Here’s the link to the below quote. http://lakeconews.com/content/view/17531/931/
Here’s the link to another piece on the settlement on this blog.

SAN FRANCISCO – Attorney General Edmund G. Brown Jr. has announced a settlement that requires the U.S. Forest Service to reconsider its plans regarding wilderness lands in four national forests, including the Los Padres, home of the endangered California condor. “With this settlement, the state of California will now play an active role along with the Forest Service in determining which areas of Southern California forests will be preserved as wilderness,” Brown said. The settlement resolves a lawsuit brought by Brown and various state agencies and environmental groups against the U.S. Forest Service for its plans to allow roads to be built through hundreds of thousands of acres of wild lands in the Los Padres, Angeles, Cleveland and San Bernardino national forests.

Who’s at the table? The plaintiffs (listed in the agreement) and the Forest Service and DOJ.
Who decides? The Department of Justice and the Forest Service and the plaintiffs, which in this case includes the State of California.

It appears to me that the State and groups that used the tactic of litigation moved the decisions in forest plans from being an open process, where the FS decides, to a not- open process where it is not so clear who decides. If land management allocations are ultimately to be made in the courts, because plans are so complex that it is difficult to do one perfectly- especially when people are paid to find flaws- perhaps it tells us that more conflict resolution, and not more analysis is what is needed. Again, I think it’s OK to use that as a tactic, but using that as a tactic has potential negative ramifications, from the perspective of openness and transparency, that need to be acknowledged.

It looks like the settlement imposes roadless-rule like requirements or, in other words, establishes a policy for federal lands in part of the State. We have had the discussion before on this blog about whether settlement agreements actually set policy. This seems to be an example of that.

Southern California Settlement Agreement

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John Gastaldo

Here’s a story on the settlement to the four California forest plan litigation.
It sounds interesting:

Under the agreement, federal and state agencies, conservationists and off-roaders will work together to improve roadless areas. The Forest Service will reconsider protecting several of the areas permanently as wilderness.
In addition, parties will identify roads and trails that are degrading designated roadless areas, and the Forest Service will prioritize them for decommissioning and restoration. The agency also will protect all roadless areas from harmful activities, including those that could prevent them from being recommended as wilderness.
The compromise includes $250,000 to cover attorney’s fees and other costs incurred by environmentalists, who praised the deal as a step toward protecting natural resources on federal property.
“As the Southern California population pushes past 15 million, wild lands are even more critical to the region because they provide drinking water, clean air and outdoor recreation,” said Annette Kondo, spokeswoman for The Wilderness Society’s California office.
The Blue Ribbon Coalition and the California Association of 4-Wheel Drive Clubs were among the user groups who signed the deal. They could not be reached immediately on Thursday.

What strikes me about the agreement is how much it’s about roadless. I have to wonder if this agreement might have been reached without litigation.
Here’s the settlement agreement.

Stay Tuned: Conflict Resolution/Litigation Topic

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Thank you to Martin, Ray, Matthew and Andy for your thoughtful posts on the use of litigation as a conflict resolution tool. What I would like to do next is to carefully read Martin’s essay, synthesize everyone’s points and reflect them back to you to make sure I understand them.

Unfortunately, this is the time of the year that my other volunteer activities reach a crescendo (so to speak) so it may be over the holiday break that this happens.

Nevertheless, I think this is a rich and robust topic for discussion. Our greatest number of hits for this blog occurs when we discuss this, so it seems like our readership feels the same way. I am looking forward to further engagement and enlightenment.

So stay tuned.

P.S.
If anyone knows where I could get a searchable electronic version of Jack Ward Thomas’s “The Journals of a Forest Service Chief”, it would be helpful- he has some great quotes on this topic which I would prefer not to have to search for and type in manually.

Hammers, Carrots, and Olive Branches

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The Ninth Circuit En Banc

This post is in response to Sharon’s recent writing about the role of litigation in federal lands management. 

Though I sometimes disagree with Sharon’s framing of issues and assessment of things, I appreciate her willingness to tackle tough issues.  But if we are going to take on such important questions, I’d like to help define the so-called “litigation problem.”  A few years ago I tried to organize my thoughts about the topic.  Here is the result, a rather long-winded and excessive essay/commentary (Nie_regulatory_enforcement in PDF)

 Here is the abstract:

This article analyzes the role of prescriptive regulation and citizen-suit litigation (regulatory enforcement) in natural resource conservation in the U.S.A.  It first briefly explains why the judiciary is so involved in resource management and why litigation is so often used as a conservation tool.  It then summarizes the extent to which regulatory enforcement is being threatened and/or undermined by Congress, the executive branch, and other interests.  The analysis shows how regulatory enforcement often facilitates the use of less adversarial conservation strategies and that there are important synergies between them.  Regulatory interactions with collaborative conservation, land and resource acquisitions/easements, and adaptive ecosystem management are analyzed. 

 

That is more boring than I remember, so here are a few comments made in the essay that might be of relevance to our readers:

Regulatory enforcement often facilitates the use of other, less adversarial, conservation strategies and shows that there are important synergies between them.  In many cases, a sort of “co-evolution” is apparent, with regulation and litigation playing an important role in the development and leveraging of other strategies. 

The most important lesson is that conservation tools are interconnected in significant ways, and when regulatory enforcement is weakened, so too are a host of less adversarial approaches to environmental protection.  Any political juxtaposition of regulatory and “non-regulatory” policy approaches should be viewed most skeptically.        

While the use of litigation by conservationists has been widely criticized and publicized, we should also recognize its widespread use by other interests.  Industry, commodity, and user-groups have initiated litigation over the 2001 roadless rule, snowmobiles in Yellowstone National Park, forest planning regulations, motorized access to multiple use lands, and dozens of other high-profile cases.  For further evidence, consider the wise use movement’s legal arm, the Mountain States Legal Foundation (www.mountainstateslegal.org ), which publicizes a “litigation of the month” section on its webpage.  The private property rights-based takings movement provides another example, as this political agenda has been purposefully advanced via constitutional litigation. 

The “policy story” of environmental obstructionism is being told by numerous actors, with the remedy being as simple as the narrative: to either remove, weaken, and/or undermine environmental regulations.

And a few comments regarding the role of litigation vis-a-vis more collaborative approaches: 

The following analysis shows that while some exaggerate its virtues, the more serious studies of collaboration show why it is better to view it as supplementary to regulatory enforcement, and is not an adequate replacement.  I take it a step further and argue that the weakening of regulatory enforcement will potentially undermine the usefulness and spread of collaboration in the future. 

For all of the benefits collaboration can produce, it is imperative we view the tool in its appropriate context.  In many respects, the hammer of environmental laws, and the groups willing to enforce them, have created the conditions necessary for collaboration to emerge as a viable governing strategy.  Citizen suits can trigger negotiations that wouldn’t otherwise get started.  And would an interest be at the table if not for some particular regulation leveling the playing field? 

The Articles goes on to explore the role of litigation in leveraging other strategies like land acquisition and adaptive ecosystem management. 

And so I’ll end with this idea, as articulated by Judge Skelly Wright in the NEPA-empowering Calvert Cliffs decision, the judicial role is to ensure that the promise of legislation becomes reality:

Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy.

“Grassroots” Environmental Groups and the Role of the Public

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I’d like to start a discussion based on some ideas in Doug Bevington’s 2009 book, “The Rebirth of Environmentalism: Grassroots Activism from the Spotted Owl to the Polar Bear.” If others don’t think his statements are an accurate depiction of how things currently are, nor of history, I think that would also be of interest.

In this book, Bevington contrasts national environmental organizations and their “insider” strategies with what Bevington calls “grassroots biodiversity groups” and their “outsider” strategies. Let me quote from the book p 36.

“As grassroots activists started doing litigation to protect forests and endangered species, they created new organizations as vehicles for the lawsuits. The new groups were initially very small with few members other than the activists directly involved in the group’s work. The activists described their new organizations as “grassroots” to distinguish themselves from the nationals. In the context of other social movements, the term is often associated with mass participation, but this was not the case for most grassroots biodiversity groups. They found that a small handful of determined activists could achieve significant environmental protection through litigation without having to engage in a broad mobilization of the public.”

And why did they not need public support? Because they were funded by foundations.
“The influx of new environmental grantmakers brought in increased opportunities for funding alternative approaches within the environmental movement (p. 37)…” and ” in my interviews with grassroots biodiversity activists a few of the newer environmental grantmakers were frequently mentioned as providing crucial early support for their groups.”

Note: the actual definition of grass roots from Merriam Webster is 1: the very foundation or source
2: the basic level of society or of an organization especially as viewed in relation to higher or more centralized positions of power.

In that sense,  the use of the term “grass roots” by Bevington  is comparing them to national environmental groups and not necessarily to local environmental or other groups. It would probably be better to use another term for these groups, but it is convenient to use this term to discuss his book.

The most direct interpretation of their strategy appears to be that public support can be bypassed if funding is available to pursue one’s goals through litigation. And it might appear to local people impacted by these lawsuits that non-local philanthropists and activists may ultimately determine policies through closed-door settlements of litigation. Which may be part of what is behind the desire to limit “appeals and litigation”- to favor open processes where local people and governments can weigh in on policies that directly affect them.

When seen through the lens of social justice, it appears that choosing litigation as a strategy may favor national interests, and those wealthy enough to be philanthropists, at the expense of the local interests and the working class. At least this lens needs to be carefully considered, in my opinion.

One way to increase trust with local people and governments would be to make transparent the source of funding for these groups, and specifically, from whom each grant is received. Then those who disagree with the legal proceedings of a group could deal directly with the granting foundation. Another way would be to open all settlement discussions to the public. It seems that if transparency is thought to be a good thing for government, it should be equally a good thing for other ways of developing public policy.