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.

Loggers, Miners and Lookouts?

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This is one of those stories that makes you think there must be more to this than meets the eye.

Here’s a link to the AP story in the Seattle PI.

A Montana environmental group is suing the U.S. Forest Service over the construction of a new fire lookout in the Glacier Peak Wilderness Area northeast of Seattle.

The group, Wilderness Watch, claims in the federal lawsuit that the Forest Service violated the National Environmental Policy Act when it built the new $50,000 lookout on Green Mountain in 2009. The building replaced a lookout built in the 1930s and long used for wilderness management and as a rest stop for hikers.

Wilderness Watch says the Forest Service didn’t study the environmental consequences before building the new lookout, and the use of a helicopter and power tools in the construction also violated the act. It wants the structure removed.

“It’s supposed to be free of structures, free of motor vehicle use,” said the group’s executive director, George Nickas. “Everybody wants it their way. The hikers don’t want the loggers or the miners or the off-road vehicle folks. You can’t expect your pet use to be OK, when the Wilderness Act is designed for us to step back and let it truly be a wild place.”

The Herald newspaper of Everett reports that the lawsuit has angered hiking groups in the region. They promote the history of fire lookouts in the region and believe the buildings help people appreciate the wilderness.

Forest Service personnel declined to comment, but longtime Glacier Peak Wilderness volunteers Mike and Ruth Hardy of south King County told the newspaper that the lawsuit threatens the work of those trying to preserve the history of the iconic fire lookouts. Scott Morris, a member of the Darrington Historical Society, agreed.

“I could sympathize with Wilderness Watch if every mountain in the Glacier Peak Wilderness were somehow threatened,” Morris said. “The purist zealotry of this group is going to harm appreciation of the wilderness. Shall we not walk in the wilderness anymore?”

I don’t understand a couple of things- why rehabbing a historic fire lookout is like “the loggers or the miners or the off-road vehicle folks” and why now, given the activities already happened. And also, I guess, in the overall scheme of things, why this issue is thought to deserve attention compared to other wilderness (current and future) issues.

Here’s Wilderness Watch’s story. Here’s the Forest Service story.

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.”

CEQ Issues Final Guidance on Monitoring of Mitigation, Use of CEs

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The Council on Environmental Quality (CEQ) issued two final guidance documents today, one which requires monitoring of any mitigation included in an environmental document, and the other governing the use of categorical exclusions.

It will take a few weeks to fully digest what the guidance will mean for Forest Service planning and implementation of projects.  Both guidance papers are an outcome of CEQs outreach in 2004 to “modernize” NEPA implementation, and last year’s “40th anniversary of NEPA” review.  CEQ is saying that these guidance documents are not rules or regulations, and are not legally binding requirements or legally enforceable.  Nevertheless, the guidance expresses the intent of the Administration, and will likely be used in reviews of agency procedures and NEPA documents.

The mitigation and monitoring guidance paper reemphasizes the importance of mitigation under NEPA to minimize the potential adverse environmental impacts by avoiding, minimizing, rectifying, reducing, or compensating for an impact.  Mitigation (like requiring best practices or staying out of a particular area) is often incorporated into the proposed project design or one of the alternatives.  Sometimes, mitigation might be used to reduce the impact such that a “finding of no significant impact” is made.  CEQ wants Federal agencies to ensure that mitigation commitments are actually implemented, and that monitoring is accomplished to provide feedback on those determinations.

The guidance for categorical exclusions (from NEPA documentation like an EIS or EA) places additional requirements on agencies when they establish categories or use categories already in existence.  CEQ is encouraging agencies to provide guidance on the level of documentation required when CEs are used.

Comments on “Scientific Integrity”

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Interesting things about blogs.. I decided to look at how people got to this blog and noticed that some were linking from Judith Curry’s climate blog here. Turns out that they are having a discussion of some of the points in the post I wrote for Roger Pielke Jr.’s blog, with many more comments (318) than at Roger’s blog here (2, so far) or when I posted it here (0). So if you are interested in this discussion, check it out.

Here’s a quote from her post.

Sharon… makes the following four recommendations:

Here are my four principles for improving the use of information in policy, (1) joint framing and design of research with policymakers (2) explicit consideration of the relevance of practitioner and other forms of knowledge (3) quality measures for scientific information (including QA/QC, data integrity and peer and practitioner review), and (3) transparency and openness of review of any information considered and its application to policy.

The bolded statement is of particular relevance to this topic. In the politics of climate expertise, which experts should be paid attention to?

Steve Schneider had very clear views on this, as evidenced in this interview with Rick Piltz shortly before his death, about the PNAS paper. It is the elite climate scientists (which includes geophysical scientists, ecologists and economists) as judged by their number of publications and citations. Many reputable scientists such as Syun Akasofu (a solar physicist and climate skeptic) were not included in the statistics because he had not published more than 20 papers that were judged to be on the topic of climate. Seems to me that Akasofu has more knowledge about detection and attribution than nearly all of the biologists and economists included in the “list”?

Given the breadth of the topic of climate change, its impacts, and policy options, it seems that considerable breadth of expertise is needed, i.e. “all hands needed on deck.” But there seems to be a turf battle over “which experts,” as evidenced by the PNAS paper and the continued appeal to the IPCC consensus.

More on the “Scientific Integrity” Memo

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Here’s a link to another of my posts on this topic on Roger Pielke, Jr.’s blog.

My concern is that it is not clear what problem the memo is intended to solve. I am not sure that the authors are aware of the dailiness of using science in a variety of government decisions at different spatial and temporal scales. In clumsily attempting to go after the misbehaving, they are likely to target the innocent for unnecessary work. In this economic climate, one would think that people would be more careful about requiring hordes of federal employees to develop and follow unclear and unnecessary policies.

Here’s my summary of the memo (more on the guidelines later).

1. What if we were to apply the ideas espoused in the memo to the promulgation of the memo (as the memo is policy) itself? We might expect a section describing how the work of noted science policy experts was used in the development of the memo, with peer-reviewed citations. I’d expect to see Jasanoff, Sarewitz and Pielke, Jr., at least, cited.

2. Here are my four principles for improving the use of information in policy, (1) joint framing and design of research with policymakers (2) explicit consideration of the relevance of practitioner and other forms of knowledge (3) quality measures for scientific information (including QA/QC, data integrity and peer and practitioner review), and (3) transparency and openness of review of any information considered and its application to policy.

3. If the DQA (Data Quality Act) and the “Integrity” work are seen to be the result of inchoate longings by many for an improved “science to policy” process; and if they seem each to have become, instead, weapons to slime the opposing political party, then why not establish a bipartisan commission on improving the use of scientific and technical information in policy? Science policy experts would advise the commission, and the deliberations would be transparent and open to public comment. The terrain to be explored would include my four principles above, and add considerations of involving citizens more directly in working with the relevant Congressional committees in developing federal research budgets and priorities.

Who’s at the Table II- Cooperating Agencies

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Over the holidays I saw this blog post on a letter send to the FS about who is at the table during cooperating agency meetings on the for the Rosemont Mine project. The letter suggests a FACA committee is necessary if non-governmental folks are invited to provide information.

Here is the letter. Here’s a quote.

It may be useful for you to know that the Bureau of Land Management (BLM) has promulgated agency-wide guidance specifically on this point. The guidance states that normally meetings between BLM and cooperating agencies do not trigger FACA because of the intergovernmental exemption. It explains that the exemption applies “to meetings between federal
officials and elected state, local, or tribal government officials or their designated employees with authority to act on their behalf.” It also addresses the question of whether a cooperating agency may be represented by a contractor working at such a meeting. BLM’s answer in this respect is very instructive:

”The cooperating agency relationship is intended to facilitate the exchange of views and expertise among BLM managers and staff and other governmental officials and staff. For these reasons, the BLM discourages the use of contractors to represent the cooperating agencies. . . .Contractors should not represent the cooperating agencies in meetings where advice or recommendations are sought.”

The guidance goes on to explain that given limited staff and time demands, a cooperating agency might be represented by a contractor if the meeting was used solely for the purpose of exchanging information. . . . “In practice, however, the distinction between exchanging information and seeking recommendations may not be clear.” “For these reasons, the BLM discourages the use of contractors to represent the cooperating agencies.” Please note that this guidance is directed
towards contractors representing other governmental entities. The guidance never suggests that it is ever appropriate to include an applicant or an applicant’s contractors on a regular basis in cooperating agency meetings.

Here’s a link to the 2005 BLM Deskguide to Cooperating Agency Relationships.

Some of you may remember this discussion on the openness of BLM cooperating agency meetings in Wyoming.

Finally, this story from earlier in December on “Who’s at the table” from Uintah County ; plaintiffs, yes, cooperating agencies, no.

The Coordination Process and Forest Plans: Opening Pandora’s Box?

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The recent ruling on the Southern California plans may well increase the weight of local governments at the table for forest planning, if Fred Kelly Grant’s logic here is correct.

The Court found that the only element of the coordination process not followed by the Forest Service was a requirement that it discuss the California policy as to “roadless areas” in order to demonstrate the inconsistencies between the Forest Service proposed plan and the California policy:
“Even if the Forest Service’s review of California’s policy was impeded by California’s failure to fully engage in the planning process, the rule nevertheless required the Forest Service to display the results of its review, however impeded. . . .The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process….”

“The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”

The Court ordered the parties to file briefs describing their views of what process should be followed in compliance with her decision. December 22, 2010, the California Attorney General, and Governor elect, Edmund G. Brown Jr. announced a settlement through which the Forest Service is required to “reconsider its plans regarding wilderness lands in four national forests.”

Brown said: “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.”

According to Brown’s news release, the state’s basic complaint, in addition to failure to coordinate, was that the Forest Service was planning to allow new roads and trails for off-road vehicles and other uses. California opposed the new road and trail openings. The Court did not rule against the Forest Service on any issue except the failure to coordinate.

Even though local governments did not involve themselves in the lawsuit, each county in which any of the affected forest lands are located would have been entitled to the same result. The laws that require coordination with the state require the same with local governments—cities, towns, counties and special taxing districts. If any local government has an interest in the roadless nature of the Los Padres, Angeles, Cleveland and San Bernardino national forests, it must act quickly in asserting its coordination rights.

You can find the actual decision here.

What I found fascinating in my concrete-thinking way, is the quote from the decision:

“The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process established by the 2005 State Petitions Rule, the lawful process at the time.The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”

A couple of points.

1. So if the FEIS had simply noted that “the State had not engaged in the process”; perhaps maximally one paragraph, would have obviated years of litigation and the settlement – which seems to be more analysis and collaboration with a relatively restricted number of seats at the table? Perhaps another settlement would have been to reissue the FEIS with the new paragraph as a revised DEIS and go for more public comment. Or even establish a FACA committee (including representatives of local governments) to review the comments on the new RDEIS and provide recommendations.

2. This case law around the coordination process definitely makes for more review and analysis, but at the end of the day, after documenting many alternatives and much more analysis, if local and state governments and feds still disagree about what to do, we still have a problem. It seems to be a pattern that we substitute more analysis for conflict resolution. Or we move the conflict resolution to the court system, where seats at the table are restricted.

3. Here’s a couple of ideas- First, in settlement agreements, only procedural solutions should be allowed for procedural problems. It is tempting to resolve these issues substantively, but that tends to leave out the groups that participated in the public collaborative process from the substantive discussion.

Second, I still think FACA committees where states and local governments have a place at the table, as well as others, are a way to build agreements and understandings that will stick.

4. Finally, the involvement of the State of California and the coordination element reminded me of this quote from Martin’s interview with Mark Rey here.

So when we came in, we looked at that history and we concluded that the crux of the problem with this issue is that it’s—on the one hand—an intensely political debate because it’s a basic resource allocation question over resources that people feel very strongly about. On the other hand, it’s a very technical debate because you’re trying to decide the fate of individual areas, putting boundaries around them that are based upon site specific data and so therefore you have to be able to amass and work with a substantial database to make good decisions.

In the case of trying to do a nationwide rule, you know you can get all the political closure you want to finally end the debate. You can have the president of the United States stand on the side of a ridge in southern Virginia and announce the outcome, but as the courts have told us, it’s hard to do justice to all the technical detail that is required to make the decision sound from the standpoint of a reviewing judge.

On the other hand, if you deal with this on a forest-by-forest basis, you can—by virtue of the fact that you have a lot less data to deal with—deal with it more intelligently.

The problem is that you can’t really get political closure to the decision because the decision is going to be made by a GS-14 or a GS-15 career civil servant and everybody knows that you can take the debate on up the food chain to see if you can get a better result. So you don’t get any real closure to the issue, both because of where it’s made and also because you don’t engage national interests to the same degree that you do in a national debate.

So we thought if we tried to find a middle road or a third path by working on a state-by-state basis, we could, on the one hand, reduce the size of the decision down to a manageable level, and on the other hand engage for the purposes of bringing better political closure to this, the one person who’s arguably elected to represent all the citizens of the state and that’s the governor, and that in a partnership with the governor we could get the right balance.

Maybe many forest plans today are now “too hot to handle” in terms of the GS-14 or 15 FS employee and being able to get political closure. What’s noteworthy about the S Cal forests is that there is no timber industry, so this is definitely a post-timber wars issue.