National Forest Management : The Contested Use of Collaboration and Litigation

Litigation over national forest management has received substantial attention from members of Congress who claim that “environmental obstructionists” are abusing the legal system; conversely, litigants criticize the U .S . Forest Service’s practice of collaborative management as insufficiently protective, leaving courts as the best resort . The authors review the emergence and increasing use of collaboration and some of the claims and counterclaims regarding Forest Service litigation . Through interviews with litigants, they describe prominent themes and issues, including criticism of collaboration, views about environmental advocacy, the need to enforce the law, the National Environmental Policy Act, and litigants’ other views regarding forest health, science, and restoration . The authors take issue with current congressional efforts to marginalize advocacy groups and citizens who use courts to enforce the law, but they also reject the false choice between collaboration and litigation and explain why both are necessary components of modern national forest management . Collaborate or litigate? This is the way in which political debate over national forest management is commonly framed . The storyline is simple: On one side are those interests willing to work with others to find common ground and agreements on the management of national forests, and on the other is a small, combative contingent of adversarial “environmental obstructionists” that serially sue the U .S . Forest Service . The role of litigation in national forest management is receiving considerable attention, with some members of the U .S . Congress particularly focused on the role it plays in impeding certain forest management actions . Those who more frequently sue the Forest Service are commonly portrayed as marginalized radicals or rogue activist groups who abuse the legal system and the procedural and analytical requirements imposed by environmental and public land laws .1 This Article resulted from an effort to better understand the positions, issues, and policy implications at the core of the national forest management debate . While a lot has been written about the virtues and accomplishments of collaboration, much less is known about why some individuals are critical of the practice and how they view it in the context of environmental and federal lands law . To better understand the critics’ perspective, we interviewed seven individuals who often challenge Forest Service decisions in Montana and Idaho and/or are prominent critics of collaboration . Two other people were interviewed because of their recent criticism of collaboration and their experiences with it in two high-profile cases . We also analyzed written materials from these and other individuals, such as legal complaints and amicus briefs focused on particular projects, submitted testimony, National Environmental Policy Act (NEPA)2-related public comments, and various editorials and other publicly available documents . Several common themes emerged from this body of information, providing a more comprehensive account of how these individuals view collaboration and litigation in national forest management . The limitations of the Article are obvious: Only nine individuals were interviewed and the geographic focus is limited to Montana and Idaho (and to a small extent