A Sea Change in How Federal Judges View Collaborative Forest Restoration Projects: Part II

A Coeur d’Alene Press editor recently asked me why I believe federal judges are beginning to see collaborative forest restoration projects more favorably than they have in recent years.

She asked the question after reading an essay I wrote in which I detailed three recent federal court rulings. You’ll find that essay here.

The answer to her question is both simple and complex.

On the simple side, judges read the same newspapers the rest of us read, recreate in the same forests we frequent and breathe the same godawful air all of us breathe during the long summer months, so they know our National Forests are dying and burning in the largest wildfires for which records exist.

Judges also know that serial litigators have become a significant impediment for the U.S. Forest Service and stakeholder collaborative groups that are working with the agency on designation, design and monitoring of forest restoration projects.

There many such projects in Idaho, all of them designed to restore natural resiliency in dying forests that are teetering on the brink of ecological collapse. There are many reasons for this collapse, including climate change and the unintended consequences of past management practices that encouraged increases in tree density that extend well beyond the natural carrying capacity of soils in which Idaho’s magnificent forests grow.

A good case can be made for the fact that Congress views these collaboratives as their get out of jail free card – meaning that the collaboratives are providing well-balanced and well-reasoned solutions to contentious forest management problems rooted in conflicting laws and regulations created over decades by – guess who – Congress.

Because Congress likes what it sees, it has been willing to give these all volunteer groups more latitude, including the authorization of Good Neighbor Authority, rules and regulations that permit state forestry departments to help the Forest Service staff projects designated by collaboratives in concert with elected officials – in Idaho’s case, Governor Butch Otter and the Idaho Department of Lands.

The more complicated answer to the question I was asked about the sea change we may be witnessing rests in The Common Law, a book of essays assembled in 1881 by Oliver Wendell Holmes, Jr., who joined the Supreme Court in 1902. Justice Holmes had this to say about the historic underpinnings of the nation’s legal system:

“The life of the law has not been logic. It has been experience: the felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do with the syllogism in determining the rules by which men should be governed. The law embodies the story of the nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

Although Holmes was one of the finest jurists of the last century, he is better known to most Americans for his having been featured in Ken Burns’ widely praised Civil War series, aired on PBS in 1990.

Holmes had been left for dead at Antietam, but survived to fight again at Chancellorsville, where he was again wounded. Following the war, he often spoke at veterans’ reunions, but he is best remembered for a war remembrance he shared with his Harvard University classmates on May 30, 1895. It is easily one of the most memorable lines from Burns’ Civil War documentary.

“We have shared the incommunicable experience of war, we have felt, we still feel, the passion of life to its top. In our youth, our hearts were touched with fire.”

President Roosevelt – Theodore – a Spanish-American War veteran and a hero in two key victories, so admired Holmes’ touching speech that he nominated him to the Supreme Court.

I suspect that most members of Idaho’s many forest collaboratives understand the sentiments Justice Holmes conveyed to his classmates on Memorial Day, 1895. Forest collaboration is its own incommunicable experience. It takes months – sometimes years - to foster the levels of trust and knowledge that unite collaborative stakeholders whose values and interests vary so widely.

Judges are susceptible to the same emotions that envelop the rest of us. Why wouldn’t they be impressed by the work collaborative groups are doing? Why wouldn’t they take the extra time and effort required to fully understand restoration projects collaboratives are developing in concert with the Forest Service?

My guess is that federal judges do invest additional study time in reviewing Forest Service collaborative project documentation because they share Congress’ admiration for what collaboration represents, and what the collaboratives are doing. Again, judges read the same newspapers we read, recreate in the same forests we enjoy, and breathe the same acrid air we breathe for most of the summer.

Bear in mind that virtually all forest litigation is based on procedural missteps, not violations of environmental law or regulation. Things as simple and subjective as whether the Forest Service “took a hard look” at a specific element of a proposed project can crack open the door to litigants who sue knowing the project will likely be watered down to meet their procedural objections – and that Congress has made taxpayers responsible for their legal expenses.

For environmental litigators, the goal is always the same: run out the clock on time-sensitive projects; delay the thinning work proposed for a stand of dying timber long enough for the trees to lose what little commercial value they have.

I have read dozens of federal court rulings over the last 30 years, enough to have formed the idea – the hope – that federal judges, no matter their political persuasion, now do indeed see the fine line where society’s ever-shifting, ever-pressing felt necessities intersect with case law. It is this intersection that forms the decision space in which judges do their work.

This is the same intersection that Justice Holmes first described in his 1881 Common Law essays. It has existed for as long as we have had a federal judiciary, and it remains a mirror image of necessities most keenly felt through time. While these societal urgings rarely have a direct bearing on public perceptions of forestry and conservation, they have tracked in near-perfect synchrony with our nation’s larger social quests since the Civil War era.

At this intersection, our National Forest future is dying and burning, the air is thick with carcinogenic smoke for months on end and, year after year, the twin pillars of our northern Idaho economy – timber and tourism – face greater danger.

Congress appears to be interested – even anxious – to fix the statutory and regulatory messes it has parceled out to federal judges over the last 40 years. Doing so would certainly make our lives safer, more productive and much more enjoyable.

Idaho dodged a big wildfire bullet this past summer, but most of the West wasn’t so lucky. Montanans witnessed their worst fire season in modern history, and Napa Valley residents are only beginning to tally their tragic losses.

Northern Idaho has not experienced a large wildfire since 1933. Our turn in the barrel is coming, so pay close attention to how federal judges rule in cases involving forest restoration projects. Pay even closer attention to what Congress does this fall to square our felt necessities with reality.

Jim Petersen, Founder and President, the Evergreen Foundation