ENDANGERED SPECIES: Lawmakers weigh reforming landmark law to reduce Forest Service lawsuits
Emily Yehle, E&E reporter
Published: Thursday, March 27, 2014
In the last 20 years, the Forest Service has faced more than 1,000 lawsuits, each requiring time and money to respond, counter and then settle or fight in court.
But the agency does not keep track of the cost, beyond the money doled out to successful litigants for their attorney fees. The reason: Officials don't see the use of such information.
"We're having to apply resources to respond to litigation" no matter the cost, Forest Service Associate Deputy Chief Jim Pena told lawmakers yesterday.
The House Agriculture Subcommittee on Conservation, Energy and Forestry held yesterday's hearing to examine the impacts of the Endangered Species Act on the Forest Service. Specifically, Republicans wanted to know the cost -- and whether Congress should reform ESA to curb what they called "frivolous lawsuits."
The Forest Service spends about $875,000 each year to reimburse the attorney and court costs of successful litigants, as required by the Equal Access to Justice Act. But Pena said other costs can include the time employees spend on such lawsuits and the damages paid when the Forest Service loses in court.
A recent study in the Journal of Forestry found that the Forest Service won just over half of the lawsuits filed against it in the past two decades. The agency settled 22.9 percent of the time.
More than three-quarters of cases sought less use of national forests, such as less logging or grazing (Greenwire, March 11).
At yesterday's hearing, lawmakers appeared skeptical that such litigation was helpful. Rep. Kurt Schrader (D-Ore.) questioned whether the application of ESA is "broken."
"I would be hard-pressed to say it's perfect in its application," Pena said. But he asserted that lawsuits and settlements have driven the Forest Service to develop management plans that are "not quite as vulnerable to litigation."
He also emphasized that the Forest Service must implement 82 laws, not just ESA, and all have the potential for litigation.
Lawmakers discussed several ideas for discouraging lawsuits. Some suggested passing legislation that would allow the Forest Service to recoup attorney fees from unsuccessful litigants, as a deterrent. Currently, even if the Forest Service wins in court, it has no recourse for getting back the resources spent on the case.
Alva "Joe" Hopkins, president of the Forest Landowners Association, also asserted that ESA opens private landowners up for litigation. He pointed to a recent fire on his property that destroyed a tract of land containing a colony of the endangered red cockaded woodpecker.
Instead of being able to recoup some costs by immediately selling the timber, he had to leave some dying trees standing for months to ensure they didn't contain any woodpeckers. If he had not, he said, his family would have been vulnerable to lawsuits.
"If the ESA cannot be reformed to help ease the concern of litigation placed upon the private landowners, then the tsunami of listings and heavy-handed tactics used by some groups threaten to do real harm to generations of forest landowners who have been and remain good stewards of land as well as to the species and their habitat," he said.
As ESA enters its 40th year, lawmakers have pushed for reforms. But so far, the process is partisan; earlier this year, 13 Republicans released a report with a slew of recommendations (Greenwire, Feb. 4).
A yesterday's hearing, subpanel Chairman Glenn Thompson (R-Pa.) emphasized his commitment to bipartisanship. But the subpanel's top Democrat, Rep. Tim Walz of Minnesota, criticized Republicans for not including Democrats in creating the report.
"Not being included in this puts up unnecessary partisanship where it doesn't need to be," he said, asserting that Democrats also were rushed to prepare for yesterday's hearing. "It's not for the sake of trying to create a partisan issue -- we simply weren't invited."
