Editor's Column

Guest Columns

Woods Wisdom

Notes From All Over

By: Jack Ward Thomas

“Survey and manage was added to the Northwest Forest Plan after my team had completed its work. It was, and is, an incredibly screwed-up mess.”

Jack Ward Thomas Chief Emeritus, US Forest Service retired; now Boone & Crockett Chair, School of Forestry, University of Montana

“The answer is a bit more complex than simply “appeals and litigation.” The laws, each of which seems quite rational when considered individually, sum up to a complex mish-mash that fits together poorly. Then, after the courts have “defined” the meanings (often variously in different judicial districts) of these laws, the interactions become increasingly difficult for managers to deal with.

Many of these laws are backed up “regulations” written by the administering agencies to carry out the intent of these laws. These regulations have the force of law. The agency charged with carrying out (enforcing in some cases) each law writes the regulations to maximize the power and authority of the agency in question and assure the ability to attain the intent of the legislation independent of all other applicable legislation.

Regulations were derived under the concept of “adaptive management” in that they could be changed by the agency without changing the authorizing legislation. The idea was to make adjustments when needed based on experience. In practice, these changes have proven difficult, if not impossible, to make. Each interest group, but particularly those of the environmental persuasion, has learned to use the regulations (and court interpretations of the regulations) to prevent revisions.

It takes about 3.5 years to prepare new regulations. Then, adoption has been routinely delayed until after the Presidential election. If incumbent loses, the new guy starts over. In the Clinton years, I had a new set ready to go that I had pushed through to completion by sheer will power. The environmentalists didn’t like them and delayed approval until after I retired. They started over with a “committee of scientists” doing the job.

Gore had them delayed until after the election—and he lost. They started over to satisfy the Bush Administration, and are ready to go with a new set. The environmentalists can’t dissuade Bush not to adopt before the election, so there is action in Congress to hold on those revisions and to start over with a new Committee of Scientists to revise the regulations. We will see.

Under current regulations there are three levels of appeal for the FS (one for other land management agencies). Plus, the Fish and Wildlife Service and National Marine Fisheries Service gets a crack if the action involves a threatened or endangered species.

Then come the lawsuits. This means that, say in the case of salvage, it takes 1.5 years to get all the paper work done (including EIS and dealing with regulatory agencies) for any operation. Then, the three levels of appeal can take up to a year. 2.5 years have now expired.

Then comes the lawsuit with injunctions until the case can be heard (likely one year) running the clock to 3 to 3.5 years. If plaintiffs lose, the decision is appealed to the Circuit Court. This can add, even if the agency wins, another six months to a year.

The total is now 3.5 to 4 years. Even with a “victory” for the agency, it has now taken 2 to 4 years and there is no value left in the timber — AND the operation is now hugely “below cost.”

Finally, if environmentalists win, the government covers their costs through the Equal Access to Justice Act. Even if they lose, there is NO liability for the litigants. Some of these litigants work for organizations that have the clearly stated objective of bringing an end to any commercial operations on the federal lands.

Unless the laws and regulations are reformed to be more compatible and it is made clear that the mission of the land management agencies includes the timber, grazing, mineral extraction aspects of “multiple use,” any likelihood of money-making commercial operations is essentially nil.

Next, unless the capability to sue the government is altered to include a provision for “loser pay” for litigation costs and damages (just like the private sector) it will be very difficult to undertake “above cost” activities. For example, a loss in the case of a salvage sale would include costs of litigation and loss in the value of the timber due to delay.”