Although modern wildfires burn hotter and more intensely, the Supreme Court in Washington, D.C., sits too far away to smell the smoke or to see the land they scar and the homes they burn. As the United States Forest Service seeks to manage national forests away from extreme wildfire, litigation slows its efforts. Lower courts often demand perfection from the Forest Service and stop projects when the agency does not meet that standard. Requiring the Supreme Court to rule on more natural resources cases would help set realistic standards for environmental analyses and would allow the Forest Service to advance its goal of reducing the risk of extreme wildfires.
I. Wildfire conditions are causing higher-severity wildfires over time.
The Forest Service has managed the forests into a condition that creates extreme wildfires. Seventy years of suppressing forest fires and eighty years of removing the largest trees have done so.[1] Humans created the wildfire problem, and that makes them responsible to fix it.[2]
Managing the forests would reduce the risks of extreme wildfire.[3] The Forest Service could enlist private timber contractors to remove small trees that act as ladders to lift the fire into the canopy. At the same time, the contractor could reduce the wildfire fuels like downed trees, branches, and leaves. Those treatments could help restore fire to the natural part of the ecosystem it served. I wrote more about those conditions here.
II. Courts often demand too much detail from the Forest Service.
Even when the Forest Service seeks to manage the forests away from extreme wildfires, litigation slows or stops the work, consumes management resources, costs jobs, or costs tax revenue.[4] Plaintiffs often sue to slow or to stop the Forest Service’s management work. They often oppose removing any trees.
To obtain that objective, they often claim that the Forest Service violated the National Environmental Policy Act (NEPA) by arbitrarily or capriciously analyzing the project’s environmental effects.[5] NEPA requires the Forest Service, and all agencies, to analyze the environmental effects of its actions before it takes them instead of letting them act only to realize what they have just done.[6]
The United States Court of Appeals for the Eleventh Circuit recognized that “Congress did not mandate perfection” from agencies in analyzing the environmental effects of their actions.[7] Nonetheless, courts follow plaintiffs’ lead into the endless details of the agency’s analyses and demand perfection.
No doubt, litigation can help test whether the Forest Service complied with the laws and acted reasonably.[8] But the bounds of a reasonable decision can flex depending on the qualities the court ascribes to the reasonable person. Does a court determine whether an agency acted as a reasonable layperson, or as a reasonable administrator, or as a reasonable expert? As courts take harder looks, they demand more details from the agency, and the agency spends more time on the analysis to comply.
III. Litigation over Forest Service management projects consumes resources and slows work.
Plaintiffs consistently claim that NEPA analyses did not provide sufficient detail. Then, they pick the biggest projects to try to stop. Litigating those decisions takes time and carries large risks. One study identified one Forest Service lawsuit on a project to complete $10 million of management activities and to give Montanans 130 jobs.[9]
In Forest Service Region 1, for example, plaintiffs litigated management projects that covered 54 % of the timber sale volume and 64 % of the acres the Forest Service sought to manage from June 2012 to June 2013.[10] Region 1 includes Montana, North Dakota, and the northern part of Idaho.
The Forest Service’s Geographic Management Regions
Studies show the Forest Service wins only about half of its lawsuits there.[11] Each lawsuit, however, hangs like Sword of Damocles over that project. The litigation risk of lost time and management resources compels the Forest Service to complete lengthy, detailed analyses to try to bulletproof every conclusion.[12] The litigation also redirects Forest Service staff’s time to support the U.S. Department of Justice attorneys who litigate in court.[13] Thus, voluminous, uncertain litigation drains more and more management resources from the Forest Service’s budget. Even if the Forest Service wins, it will have spent hours defending the lawsuit.[14]
IV. The Supreme Court could provide more guidance on western natural resources issues.
Requiring the Supreme Court to involve itself more in western issues would advance agencies’ efforts to decrease extreme wildfires. More Supreme Court guidance on natural resources issues, generally, and on the appropriate level of detail to include in project analyses, specifically, could decrease litigation expenses and release more Forest Service management resources.
The Constitution gives Congress authority to set the scope of the Supreme Court’s appellate jurisdiction.[15] Congress currently gives the Supreme Court complete discretion over which cases to take, except for voting rights cases and cases between states.[16] Technically, the litigants seek a “writ of certiorari,” or ask the Supreme Court to make certain the lower decision, and the Supreme Court decides whether to grant that request.[17] The Supreme Court rarely grants those requests. One study counted approximately 6,200 petitions, and found the Supreme Court reviews about five percent.[18] And most litigants do not even petition for a writ of certiorari. Thus, the lower courts (the courts of appeals and the district courts) decide almost all cases without the Supreme Court.
V. Conclusion
If the Supreme Court took natural resources cases whenever the U.S. Department of Justice requested, the Supreme Court’s caseload would not likely increase more than one or two cases every couple of years. But those additional decisions would provide more certainty for the Forest Service and for other governmental agencies. They would conserve resources and allow the Forest Service to focus on western issues like managing the forest instead of managing litigation.
Notes
[1] Forest Service Chief Dale Bosworth, Fire and Fuels: We Need a Public Lands Policy Debate, Speech to Cal Poly Seminar: Changing Fire Management and Policy (Mar. 6, 2006), available at https://www.fs.fed.us/speeches/fire-and-fuels-we-need-public-lands-policy-debate.
[2] In the lead up to the Iraq War, Colin Powell allegedly compared Iraq to any item at Pottery Barn: “You break it, you own it.” Bob Woodward, Plan of Attack 150 (2004).
[3] Please allow me to disclose that, when I served as a Trial Attorney for the United States Department of Justice from 2008 to February 2017, I represented the Forest Service. At every point during my service, I was litigating at least one project in Region 1.
[4] David Erickson, Forest Service-funded study: Timber sale lawsuits impact local jobs, tax revenue, http://missoulian.com/business/local/forest-service-funded-study-timber-sale-lawsuits-impact-local-jobs/article_b8e4ccb3-601b-5478-84cb-6ff0702f9bc7.html.
[5] 42 U.S.C. §§ 4321-4347.
[6] See 40 C.F.R. §§ 1500.1(b) (“NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.”), 1500.1(c) (“The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.”). The Administrative Procedure Act (APA) grants jurisdiction to review agency decisions, and it prohibits agencies from acting arbitrarily or capriciously. 5 U.S.C. §§ 701-706, 706(2), (2)(A) (“The reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).
[7] Druid Hills Civic Ass’n, Inc. v. Fed. Hwy. Admin., 772 F.2d 700, 708 (11th Cir. 1985); see Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003) (“An agency’s actions need not be perfect; [courts] may only set aside decisions that have no basis in fact, and not those with which [courts] disagree.”); Nevada v. DOE, 457 F.3d 78, 93 (D.C. Cir. 2006) (recognizing that courts do “not ‘flyspeck’ an agency’s environmental analysis, looking for any deficiency no matter how minor.”); Mason Cnty. Med. Ass’n v. Knebel, 563 F.2d 256, 265 (6th Cir. 1977) (“But no matter how well the EIS has been written, someone later can always find fault with it. We would question whether a perfect EIS has ever been prepared.”); see also United Hosp. v. Thompson, 383 F.3d 728, 733 (8th Cir. 2004) (upholding an agency decision because “[t]he perfect must not become the enemy of the good.”).
[8] The Supreme Court has held that the difference between reasonableness and “arbitrary and capricious” has no “great pragmatic consequence.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 n.23 (1989).
[9] Todd A. Morgan & John Baldridge, Understanding Costs and Other Impacts of Litigation of Forest Service Projects: A Region One Case Study 10-11 (Univ. of Mont. May 5, 2015), available at www.bber.umt.edu/pubs/forest/BBERLitigationRpt2015.pdf.
[10] Understanding Costs and Other Impacts of Litigation 11.
[11] Tom Kuglin, Law of the land: How litigation has shaped the Forest Service, Helena Independent Record (Nov. 9, 2014), available at http://helenair.com/news/local/law-of-the-land-how-litigation-has-shaped-the-forest/article_75dab06b-cc05-5e1d-be2d-2e524c6c596f.html.
[12] Understanding Costs and Other Impacts of Litigation 15. Indeed, someone commented that it is “almost impossible to bulletproof an [analysis] against litigation.” Law of the land (quoting Montana Wood Products Association Executive Director Julia Altemus).
[13] Understanding Costs and Other Impacts of Litigation 10, 15 (“Time that agency personnel spend defending against litigation is time they are not able to spend planning or analyzing other projects, interacting with the public, or delivering the suite of services and resources the public counts on them to provide.”).
[14] See id. at 14.
[15] U.S. Const. Art. III, sec. 2 (“the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions . . . as the Congress shall make.”).
[16] 28 U.S.C. §§ 1251-1260, 1253 (requiring the Supreme Court to hear cases from district courts of three judges), 2284 (convening a three-judge court only “when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”); 52 U.S.C. § 10054 (convening a three-judge panel for other voting rights cases); Rule 10 of the Rules of the Supreme Court (2013) (“Review on a writ of certiorari is not a matter of right, but of judicial discretion.”), available at https://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf.
[17] See Supreme Court Rule 16(2).
[18] Adam Feldman & Alexander Kappner, Finding Certainty in Cert: An Empirical Analysis of the Factors Involved in Supreme Court Certiorari Decisions from 2001-2015, 61 Villanova L. Rev. 795 (2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2715631 (abstract) (93,000 petitions / 15 years = about 6,200 petitions per year).