August 11, 2008

Authority returned to the Forest Service

I am convinced that one of the hardest jobs in the government is to work in the USDA Forest Service. It is not that it is dangerous work... it's that it must be so frustrating.

Here is an organization entrusted with a gargantuan challenge, with what should be a more than adequate budget, and more responsibility than should be expected of any governmental agency - safeguarding the health of one of our biggest assets, our federal forests. The job should be the most fulfilling in government - "gardeners" of our rich forest legacy and its wildlife. The people I've met are dedicated and top-notch - steeped in decades of education and experience studying the fine machinations of our forest ecology.

So why is it so frustrating? It is because the management lacks any real authority. They cannot control their own much less our forests' destiny.

What is ironic is that the people that challenge them the most - the non-governmental organizations (NGOs) that frequently take them to court - insist on turning more private lands into their care. Do they receive commensurate budgetary increases to manage the additional lands? No. Are the forests going to be taken care of better by a federal bureaucracy than by private timberland owners - no. Why? Well, the private owners had authority to tend to their assets. The Forest Service has very little control over these same lands. It must be great sport taking the FS to court but it certainly isn't resulting in healthier forests based on better science.

Which is why it is heartening to see the Ninth Circuit Court of Appeals come out and unanimously overrule a decision that judges should not be making scientific decisions in lieu of Forest Service expertise. The August 2008 issue of the Society of American Forestry (SAF) reports on this encouraging turnaround.

Incredibly, many court challenges barring forest management projects are based on the specious argument that the Forest Service violates the National Environmental Policy Act (NEPA) because it doesn't "adequately address all of the uncertainties in its proposed treatments." The lower courts often take the view that "the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns." In short, neither money nor time matters if there is any possibility that their actions might be detrimental to some special concern or another. The appeals court's ruling counters that this policy gives the lower court too much authority over scientific matters outside its jurisdiction.

In its July 2 ruling on Lands Council v. McNair (or Lands Council I) the panel wrote that, “In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. As we will explain, this is not a proper role for a federal appellate court.”"

Such a ruling couldn't come too soon. As explained elsewhere in this blog, our forests suffer from too little forest management stalled interminably by litigation - particularly in view of the unnatural conditions of smoke and greenhouse gas emissions from wildfires which continue to distort the historic profile of our forests.

Ninth Circuit: Improper for Judges to Act as Scientists
11-Judge Panel Says Courts Must Defer to Agency Expertise

In a landmark case, an 11-judge panel of the US Circuit Court of Appeals for the Ninth Circuit unanimously ruled last month that courts must defer to US Forest Service expertise when it cannot be shown that the agency acted in scientific uncertainty in complying with the National Environmental Policy Act (NEPA), and that the agency could choose the scientific methods it uses in meeting the requirements of the National Forest Management Act (NFMA).

Undersecretary of Agriculture Mark Rey praised the decision.
“We think this is a fairly significant decision—maybe the most significant Forest Service environmental case of the past two decades,” he said. “The panel was reacting to the Ninth Circuit getting deeper and deeper into a posture of second-guessing agency expertise or its use of expert scientific information. In several instances, the panel reversed what they believed was a drift in Ninth Circuit jurisprudence away from the standards of review used by other circuits.”

Rey added that the panel said that it was not necessary for the Forest Service to prove its methods to a level of scientific certainty.
“The panel said that wildlife viability is not the only consideration that the agency has to take into account and that we are not required to use on-the-ground analysis in all cases,” Rey said. “They said that it is not the court’s role to conduct an assessment of the methodology the Forest Service uses, that the Forest Service has discretion to determine what scientific studies are important, and that we’re not required to address every possible uncertainty in our decisionmaking.”

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