Claim 3. Not just BBER, but other studies have shown that R-1 has an unusually high level of litigation on vegetation management projects.

This seems to be due to the activities of a relatively small number of groups.

Of the 133 R1 cases in past 11 years, the majority (75) were by repeat litigants, with 30 cases filed by the Alliance for the Wild Rockies (AWR), 19 by the Native Ecosystems Council (NEC), 8 by the Lands Council, 5 each by the Ecology Center, Friends of the Wild Swan, and Swan View Coalition, and 3 by the Wild West Institute.

So here are some hypotheses:
(1) R-1 is home to a number of groups who have chosen litigation as a policy strategy.
(2) They are selling more timber than other Regions (this could be checked).
(3) They do a poorer job than other regions in being legally defensible (I doubt this based on the people I know who work there).
(4) They have more endangered species, which provide additional legal hooks.

Does anyone have additional hypotheses?

To examine these possibilities, it would be interesting to compare R-1 and its neighbor R-6, or even a couple of forests in northern Idaho and eastern Washington.

Claim 4. Litigation has a significant impact on the region’s a) timber program and b) ability to accomplish other vegetation management objectives (e.g., fuel treatments.)

Here’s what BBER says:

“Also, 54% of the timber sale volume (226.5 MMBF) and 64% of the acreage (35,485 cruised acres) was litigated, with over one-quarter of projects not under CE being litigated.” and “A regional timber program summary based on litigated volume in each R1 forest and program unit costs indicated that almost 54% (164 MMBF Scribner) of the Region’s FY 2013 timber program volume and 39% (114.6 MMBF Scribner) of the FY 2014 timber program volume were encumbered by litigation.”

Nevertheless, as Matthew has previously posted here, R-1 continues to meet its timber targets (although if we look at 2012 to 2016, we get 75% 64% 99% 101% 73%) . Someone else could say “out of the past five years, R-1 missed their target by 25% or more three out of the five years).

But let’s accept that R-1 is generally doing a great job of meeting timber targets and yet has lots of litigation that has an impact on their abilities to do this work as well as other work. How can both things be true?

It appears that R-1, in response to its situation of litigation, has evolved a strategy for meeting targets that puts more sales into the pipeline with the assumption that a bunch of them will be held up. This strategy is more successful in some years and not as much in others, as you would expect given the lurching progress of different litigation timelines. Neverhtess, it is a generally successful strategy.

Is it a problem or not?
Employees, retirees, elected officials, Montana citizens and citizens of the rest of the country can be of different minds about it whether there is a problem in R-1 (and elsewhere) and what to do about it. Personally, I wonder if FL groups should have that much power over what happens on public land, compared to other citizens and elected officials who are accountable to citizens. It seems like a good gig for them, but not so much for the rest of us.

The University of Montana Bureau of Business and Economic Research (BBER) looked at some Region 1 projects, chose a case study, and tried to quantify the impacts to communities and to the Forest Service in this 2015 study. We have discussed it on the blog before, but it’s of current interest because the findings have been discussed in the current heated debate over wildfire funding legislation, and possibly taken out of context. I think with all the experienced folks on this blog, we ought to be able to jointly and civilly parse this out, and possibly be of help to journalists and congress folk and their staffs. Folks from BBER and those who heartily disagree with them are equally invited to chime in.

This will be a series of posts, and in each one we’ll examine some claims and evidence from the BBER study. Today we’ll start with two that are probably the most contentious.

I’ll put on my science policy nerd hat here..this doesn’t seem like a topic that has gotten enough study relative to the importance of the issue- BBER did only one case study, funded by R-1 (not the research branch of the Forest Service). It’s only one case study, and we can ask the question- in 2015 these topics were raised, why was more not done? So we have to hold both ideas at the same time “it’s only one case study” and “it brought up questions that deserve to be further explored.”

Claim 1.The biggest impacts of this litigation are to communities. Slowing, not stopping projects also has economic impacts.

“Economic impacts to communities – in jobs, labor income, federal, state, and local taxes – are identified as the largest potential impacts of FS litigation (potentially exceeding $10 million and 130 jobs for the SBR project alone), particularly when timber harvesting and other land management activities that create or maintain private employment and generate wages and other taxable revenue are reduced, delayed, or completely forgone as a result of litigation.”

“Even if agency personnel were not spending effort working on these cases each day cases were open, the duration of most litigated cases was over multiple planning and budget cycles, making resource management and financial decisions very difficult for the FS, mills, loggers, and forest-dependent communities in the Region.” (my italics)

Note: I think what this is getting at is that $ comes around on an annual basis for agencies and when the litigation is finally finished, the unit may not have the funds to actually implement the project. This is an angle that perhaps needs to be discussed more, and may have potential (internal FS) solutions through the (internal FS) budgeting process.

Claim 2. We don’t know the impact in terms of costs to the federal government. You can’t estimate costs of DOJ and OGC (the lawyers and their support) because (don’t collect or won’t give you) the information. BBER did look at costs of FWS and FS employees. There are also opportunity costs for what else FS, FWS, OGC and DOJ employees could be doing instead of R-1 vegetation project litigation.
“Findings show that litigation costs of the SBR case (one case study) to the FS (over $95,000) and FWS (over $4,500) exceed attorney fees and Equal Access to Justice Act (EAJA) payments (none in this case) made to plaintiffs and/or their attorneys. This finding is significant because: 1) previous studies have used attorney fees and EAJA payments as the sole measure of litigation cost, 2) attorney fees and EAJA payments are made in less than 20 percent of recently litigated FS and R1 cases, and 3) the SBR case study does not fully quantify the Regional impact of litigation. “

Note: I have a question in with DOJ public affairs asking why cost information is unavailable. To quote Fred Norbury, Director of Ecosystem Management in the WO for the Forest Service during the Analysis Paralysis days “How can we say it takes too long and costs too much if we don’t know how long it takes or how much it costs?” He was talking about NEPA and project planning, but the same could be said for litigation. Another argument for giving this topic more attention and funding.

(nothing received for Oct. 20)

Litigation Weekly Oct 27

• TenLakesSnow v USFS

The district court upheld the Kootenai and Idaho Panhandle NF 2015 revised forest plans with regard to management of recommended wilderness areas, but the Kootenai planning process failed to provide for adequate public comments on recommendations to designate two river segments (D. Mont.) Also discussed here.

New cases

• Devils Garden v McAdams

A preservation group and two ranches challenge the Modoc NF’s failure to remove excess wild horses as required by the Wild Free Roaming Horses and Burros Act and a territory management plan (E.D. Cal.).

• NEC v Martin (actually Marten)

This case concerns the Moose Creek Vegetation Project on the Helena-Lewis and Clark NF and the Healthy Forest Restoration Act Montana designations (D. Mont).