Study: As logging declines, lawsuits continue

Mateusz Perkowski

Capital Press

A study of national forest litigation over a 20 year period found that the U.S. Forest Service has been more willing to settle cases in recent years.

Lawsuits over the management of national forests have persisted despite a steep decline in logging, based on a 20-year litigation study.

An average of 56 cases a year were filed against the U.S. Forest Service between 1989 and 2008, according to the State Univerity of New York study, which was funded by the agency.

In that time, annual timber harvest levels in national forests have dropped roughly 75 percent, from 12 billion board feet to fewer than 3 billion board feet, according to Forest Service data.

“Even with the supposedly kinder and gentler forest management, the environmentalists are still litigating,” said Scott Horngren, attorney with the American Forest Resource Council timber industry group.

Environmentalists are now targeting thinning projects that they previously claimed were preferable to large clearcuts, he said.

There are simply fewer timber sale projects for the groups to target, Horngren said. “They all gang up on what’s left.”

Ralph Bloemers, an environmental attorney with the Crag Law Center, said he disagreed with that characterization of the data.

Lawsuits against the Forest Service are filed by diverse interests, including industry groups and people who live next to national forests, he said.

“It’s not just environmental plaintiffs,” said Bloemers. “The courts continue to be a place where people can enforce the substantive protections of the (Northwest) Forest Plan and ensure due process.”

The study evaluated the lawsuits filed during the 20-year period and found that the Forest Service prevailed about 54 percent of the time.

The agency lost about 23 percent of the cases and settled another 23 percent, the study said.

During the first decade analyzed in the study, the number of lawsuits against the Forest Service generally increased.

In the second decade, the number of annual cases swung wildly, from about 40 to more than 100.

Forest Service officials also appeared more willing to settle cases in the more recent years.

Since 2003, the agency has reached settlements in roughly 33 percent of cases, compared to fewer than 18 percent previously.

Bloemers said this statistic is encouraging, as settlement deals can offer more durable solutions than court rulings.

“It would be a heartening trend to see more settlements,” he said.

The study’s conclusion that the Forest Service loses nearly one-fourth of the lawsuits points to the agency’s management shortcomings, Bloemers said.

As a matter of law, the court is supposed to defer to the agency’s judgment, he said. “They get a lot of discretion and they’re still losing a lot of cases.”

Horngren of the American Forest Resources Council said unfavorable rulings have a ripple effect on other Forest Service projects, which must often be revised based on the judge’s opinions.

“They’ve got to go back and redo their work,” he said.

The legal process also creates major delays, Horngren said. Even after a project is revised, it can take years to win approval from the court to lift an injunction.

“The agencies are up against the overworked judiciary,” he said.

However, the Forest Service’s legal outlook is more optimistic now than it was during the years covered by the study, Horngren said.

In 2008, the 9th U.S. Circuit Court of Appeals issued a landmark decision in which it denied an injunction against a large timber project in Idaho.

The ruling reduced the ability of courts to second-guess the Forest Service and allowed the agency to rely more on its own experts, said Ann Forest Burns, vice president of AFRC.

“They’re entitled to evaluate the science for themselves,” she said.

Since then, the agency’s odds in court seem to have improved, said Horngren.

“I see a lot more victories,” he said. “Not every time, but at least we’re not dead on arrival.”



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