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Forest Service Is a Tough Legal Opponent

Study of Lawsuits Against Federal Agency Shows Rulings Tend to Favor the Forest Service

By Matthew Harrison
Date Posted: 11/1/2006


        A recent study that examined litigation against the U.S. Forest Service found that the agency prevailed in courtrooms in over half the cases.

        The report, titled ‘Forest Service Land Management Litigation: 1989-2002’ and published in Journal of Forestry, studied 729 federal court cases. The Forest Service won 420 (57.6%) of the legal disputes, lost 155 (21.3%), and settled 128 (17.6%). Twenty-six cases (3.6%) were withdrawn before decisions were made.

        “The Forest Service enjoys an excellent success rate, 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,” remarked Dr. Robert Malmsheimer in a statement for the Society of American Foresters. Robert, associate professor of forest policy and law at the State University of New York, was the lead researcher for the study.

        Forest Service legal victories benefit the forest products industry, especially loggers. While legal disputes over logging amount to nearly 40% of the total litigation studied, logging litigation occurred more frequently than cases involving any other issue.

        “Given the complexity of the overlapping laws that affect forest management and the differing court interpretations of those laws, it is remarkable that the professionals in the U.S. Forest Service prevail nearly three-quarters of the time in court,” said U.S. Rep. Greg Walden, R-Ore., chairman of a House of Representatives subcommittee on forests and forest health.

        Researchers explored the court rulings because legislation passed during the 1960s and 1970s dealing with federal land management and environmental protection increased public awareness of Forest Service policies. Also, researchers questioned how the recent emergence of a more highly educated and involved citizenship utilizes the judicial system as a means to influence policy decisions.

        Litigation against the Forest Service is contentious. “Critics assert that judicial challenges to land management decisions hinder the Forest Service’s decision making process and that many lawsuits are frivolous and brought for the purpose of frustrating, rather than improving, these decisions,” reads an excerpt from the report.

        “Well, it’s an interesting observation,” countered Sierra Club forest policy specialist Sean Cosgrove. “There is any number of studies that have been done, and they usually have some manner of political goals.”

        “It’s a real drain on the Forest Service to have to battle in court so often, and it must be very frustrating to the professional foresters who spend their time and resources fighting frivolous lawsuits rather than implementing forest stewardship programs,” Rep. Walden added in a statement. “This comprehensive report helps policymakers better understand the scope and outcome of the litigation that plagues our Forest Service.”

        The authors suggested that their research compiled the “first complete picture of Forest Service land management litigation.”

        Cases were included in the study if, over the 14 year period, the plaintiff argued that a Forest Service ruling violated the law or sought a court order to change how the Forest Service manages federal land. Information about each case was collected from docket sheets and judicial opinions for court-approved settlements.

        “I think that it provides information not just to the Forest Service but to stakeholders and policy makers to help them understand Forest Service land management litigation,” Robert said in an interview. “You know we hear a lot about litigation, and we have a lot of anecdotal information, but we don’t have much data based information.”

        Some cases were omitted from the study. For instance, cases that involved monetary compensation for plaintiffs, disputes of federal land ownership, disputes concerning state law, or scenarios in which the Forest Service lacked decision making authority were excluded. The researchers were unable to obtain complete information on another 137 cases because of the unexpected high cost of obtaining archived documents.

        Eric Olson, the Forest Service’s national litigation coordinator believes the study is “a very useful tool for predicting potential trends and figuring out in advance what litigation strategies might be more successful.”

Litigation Trends

        For the most part, judges generally rule in favor of the Forest Service. In the 575 cases decided by a judge or a panel of judges, outcomes favored the Forest Service 73% of the time.

        Litigants appealed 257 (44.7%) of the 575 cases won by the Forest Service, and the Forest Service prevailed in 190 (73.9%) of the appeals. Of the cases studied, 21 cases went to the U.S. Supreme Court, but only one was actually reviewed by the nation’s highest court; in that case, the U.S. Supreme Court ruling also favored the Forest Service.

        The researchers learned that the Forest Service averaged about 52 lawsuits per year. The highest number of cases in any particular year was 76 in 1998. It experienced the highest percentage of legal losses during the Clinton Administration in 1994, 1997, and 2000.

        The researchers also noted that litigation in several regions was disproportionate to acreage owned by the Forest Service. Region 6, which covers Washington and Oregon, represents more than 12% of total National Forest Service acreage but accounted for more than 22% of all lawsuits, according to the study. The Northeast region contains 6.3% of Forest Service land holdings, but 12% of Forest Service lawsuits originated there.

        A strong majority of plaintiffs (75.1%) sued the Forest Service to reduce use of natural resources, such as attempting to prevent timber sales. According to the report, the Forest Service won 275 (53.5%) of these cases, lost 123 (23.9%), and settled 98 (19.1%).

        The remaining 24.9% of cases sought greater use of forest resources. An example given by the researchers would be the Forest Service decision to reduce the amount of special use permits granted to recreational outfitters. The forest service won 117 (68.8%) of such disputes,  lost only 28 (16.5%), and settled another 21 (12.4%).

        “Just framing it as less resource use versus more resource use is a very biased way to put things,” argued Sean, but he did not suggest a different way of categorizing the cases.

        Plaintiffs charged the Forest Service with violating over 30 statutes in the cases studied, but the majority of cases was focused on only three laws. Alleged violations of the National Environmental Policy Act (NEPA) of 1969 dominated litigation, comprising 68.6% of all cases reviewed in the report. The National Forest Management Act (NFMA) of 1973 and the Endangered Species Act (ESA) of 1973 were the other two statuettes most frequently cited, at 43.5% and 17.9% of all cases, respectively.

        While NEPA and NFMA cases nearly parallel most of the researchers’ data on wins and losses, the Forest Service only won 50% of the ESA cases but settled considerably more ESA cases (21.3%) than cases for any other statute.

        According to the study, “The Forest Service settles almost as many land management cases as it loses,” suggesting that the lawsuits often hold some merit. “I think probably the most important thing is that this is the first time anybody has really looked at how often the forest service settles cases,” said Robert. “Obviously, not only are the plaintiffs seeing some benefits from the settlements, but we think the Forest Service…is seeing some type of benefit from the settlements.”

        “The settlement positions are usually made by the Department of Justice based on their evaluations of the strengths and weaknesses of each case,” remarked Eric. “The general rule is that the Department of Justice looks into settling cases where they don’t think we have a particularly strong defense and litigating the ones where we do have a strong defense.”

        “We really don’t know an awful lot about what’s going on in those settlements,” said Robert, citing the complexity of federal interagency activity. In the study, the researchers conjecture that time-sensitive cases, instances in which judges broker settlements and cases that involve policy changes via legal action are all valid reasons why the Department of Justice would approve settlements.

        The Forest Service is vulnerable to litigation, Eric observed. “We are managers of 193 million acres of land, and we make hundreds if not thousands of decisions everyday regarding the management of those lands, and that’s a very big target for people to look at if they’re trying to find projects where we make mistakes.”

        With the number of land management decisions made daily by the Forest Service dwarfing those that generate lawsuits, Eric noted that the number of lawsuits against the Forest Service “is probably a fairly small percentage.”

        As the Forest Service continues to implement the controversial Healthy Forest Initiative and with an array of new legislation pending, the agency undoubtedly experienced a new barrage of lawsuits since 2002. Hopefully, a thorough analysis of the data presented by Robert and his fellow researchers will prevent the kind of frivolous lawsuits that give loggers more unpaid vacation days than they want.


 






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