October 5, 2007

Ending Obstructive Environmental Lawsuits

An oft heard frustration of the USDA Forestry Service is the frequency of challenges mounted in opposition to their planned forest management programs. In June of last year, the Society of American Foresters published a comprehensive study of the legal challenges filed in federal court from 1989-2002 - all 729 of them!

Dr. Robert Malmsheimer, lead researcher and Associate Professor of Forest Policy and Law at State University of New York's College of Environmental Science and Forestry (SUNY ESF) expressed the good news/bad news verdict of the study:

“The Forest Service enjoys an excellent success rate – winning 57% of all cases and 73% of the cases decided by a judge or panel of judges – especially when one considers that the Forest Service is the defendant in all of these cases and the plaintiffs get to choose the basis and venues for their lawsuits.

“It’s interesting to note however, that the Forest Service settles more than one in every six cases – almost as many land management cases as it loses. Clearly both the Forest Service and litigants view settlements as an important dispute-resolution tool.”

The study’s authors also note that plaintiffs win less than one of every four cases. This suggests that plaintiffs may receive indirect benefits from litigation, such as publicity, delay of action, and the chance of establishing new legal precedents. These benefits may be as important to some litigants as the direct benefits of winning lawsuits.

Delays are costly to the environment. Forest Service programs are designed to either prevent a health problem for a forest or remediate an unhealthful condition that could result in fires, decay, or infestations. It has been determined that a decaying forest emits 300% more greenhouse gases than a fire ravaging the same tree. The Forest Foundation reports that "Nearly four years after fires burned more than 133,000 acres of national forest land in California, less than one percent of those acres have been replanted.” As Forest Service resources are squandered fighting litigation and forest fires, is it any wonder that more remedial programs are shelved until more resources are available?

On the bright side, Michael Moore of The Missoulian reports that environmentalists and government leaders have found a way to reach consensus on forest programs without resorting to legal redress. See excerpts below:

Forest Parties Reach Consensus on Restoration Principles
by MICHAEL MOORE of the Missoulian, September 28, 2007

For months, a diverse group of conservationists, timber industry officials, forest users and government leaders met in an effort designed to stem the tide of lawsuits filed against forest restoration projects.

Finally, on Thursday, the group announced a set of 13 principles that might guide future restoration work on the Bitterroot and Lolo national forests.

And because those principles are the result of a time-consuming consensus process, the hope is that restoration projects will move ahead more quickly, be less likely to spawn litigation and, most important, be good for the ecosystems they're designed to restore.

The effort started in the frustrating wake of a post-fire restoration project in the southern Bitterroot Valley. The project became embroiled in litigation, and prompted many on both sides of the debate to wonder if there wasn't a better way to approach such projects.

Not long after that, a group of about 35 gathered at the Lubrecht Experimental Forest for a meeting that eventually evolved into the Montana Forest Restoration Working Group.

The group drew representatives from industry and the conservation community, but also from forest user groups like snowmobilers, horsemen and outfitters.

Over the next months, they worked to find what they characterized as a zone of agreement, a place where everyone could accept what a successful restoration project ought to look like.

The zone eventually grew into a preamble and set of principles. That preamble notes the importance of scientifically sound, ecologically appropriate restoration work, but it also factors in the importance such work can have on surrounding rural communities.

The principles include:

- Restore functioning ecosystems by enhancing ecological processes.
- Re-establish fire as a natural process on the landscape.
- Consider social constraints and seek public support for reintroducing fire.
- Engage community members and interested parties in the restoration process.
- Improve terrestrial and aquatic habitat and connectivity.
- Establish and maintain a safe road and trail system that is ecologically sustainable.
- Integrate restoration with socioeconomic well-being.

Now that the principles are in place, the committee will begin work on two pilot projects on the Lolo National Forest and one on the Bitterroot. Those projects are still under consideration and were not announced on Thursday.

On a project-to-project basis, committee membership will vary depending on where the project is, with an eye toward bringing stakeholders and those with the most knowledge of the area to the table, Ekey said.

Pyramid's Gordy Sanders said the end result should be a restoration process that works for both the land and communities.

The Full Restoration Guidelnes Can be viewed and Down loaded at www.montanarestoration.org.


Finally, in a recent article in the NY Times titled As Logging Fades, Rich Carve Up Open Land in West environmentalist see another ominous threat that is a consequence of the demise of the forest products industry - the rise of timberland sales to real estate developers.
In ways that would have been unthinkable only a few years ago, environmentalists and representatives of the timber industry are reaching across the table, drafting plans that would get loggers back into the national forests in exchange for agreements that would set aside certain areas for protection.

Both groups are feeling under siege: timber executives because of the decline in logging, and environmentalists because of the explosion of growth on the margins of the public lands.

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