The 9th Circuit Court of Appeals ruling last week allows Forest Service logging projects to proceed without on-the-ground soil analysis.
In a rare rebuke of itself, the 9th Circuit Court of Appeals ruled last week that it had overstepped its judicial authority two years prior when it required the Forest Service to conduct on-the-ground review for prospective timber sales.
The decision essentially overturns a 2005 injunction that said the Lolo National Forest’s Post-Burn Project had violated both the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) in their cutting of old growth trees, and that their soil quality analysis was “insufficiently reliable to satisfy NEPA or NFMA regarding their treatments of old growth.” In the reversal, the federal court scolded itself for creating requirements for the agency “not found in any relevant statue or regulation,” and by defying “well-established law concerning the deference we owe to agencies and their methodological choices.”
Immediately following the ruling, Agriculture Undersecretary Mark Rey heralded it as “the most important decision involving a Forest Service environmental case in the last two decades.” But while Rey rushed to get on the record, most observers remain reluctant to assess how this ruling will influence future logging deals. The decision, some conservationists believe, simply returns logging standards to an unacceptable status quo, and gives the agency too much discretion in policing itself.
That raises another issue. Stuck in the middle of this political crossfire are the scientists working within the agency’s independent research branch—those now responsible for carrying out the agency’s “methodological choices.” And according to one of the scientists, credibility issues are bound to arise.
“Some scientists believe the best way to increase funding for research is to support management policies,” says Leonard Ruggiero, deputy program director for the USDA Rocky Mountain Research Station in Missoula. “It is naïve to believe that direct involvement in the establishment or evaluation of management policy doesn’t damage scientific credibility in the long run.”
In keeping with that premise, Ruggiero declined to comment on the specifics of Lands Council v. McNair. However, last year he authored a paper entitled “Scientific Independence: A Key to Credibility,” and will soon be submitting a revised version to a national ecology journal.
With decades of experience as a researcher, Ruggiero has found himself frustrated with colleagues who conduct studies with the purpose of meeting political ends. This annoyance has him submitting more papers for peer review in the near future, with one report, “The Politics of Ignorance,” speaking volumes to his concerns. Clearly, credibility remains essential to the researcher.
“No one, neither the scientist nor the policy maker, is served by a loss of scientific credibility,” he says.
Congress anticipated this potential for the politicization of research when it organized the Forest Service, explicitly keeping the Research and Development branch separate from it’s land-managing sibling, the National Forest System. According to the Forest Service Manual, “The Forest Service shall…maintain the Research and Development function as a separate entity… with clear accountability through a system that maintains scientific freedom for R&D.”
Still, agency researchers regularly see their findings politicized, ignored or skewed by managers, often based on pre-existing policy positions and effectively bringing the credibility of the research into question.
“The wisdom here is that science cannot be credible if it is politicized,” he says. “Science should not be influenced by managers, and scientists should not establish policy. This logic keeps scientific research ‘independent.’”
This independence—from corporate research dollars, administrative arm-twisting and the like—is critical, says Tom Woodbury, whose firm Forest Defense represents the WildWest Institute, a co-plaintiff in Lands Council v. McNair. Woodbury points to the case’s “Factual and Procedural Background,” to note multiple statements of conjecture laid out as fact by the 9th.
“This ruling states as fact that ‘Old-growth trees need relatively open conditions to survive,’ that ‘Increased density is causing a decline in the health and vigor of all trees’ and ‘Dense, dry forests are at risk for large, stand-replacing fires due to the build up of fuels,’” says Woodbury. While all these points clearly contain certain truths for certain forests in certain circumstances, Woodbury says none are referenced, and all are pure conjecture unless groundtruthed.
It only added fuel to the political fire that the ruling was written by Judge Milan D. Smith Jr., a brother of Gordon Smith, R-Ore., who, according to the Center for Responsive Politics, has received more than $802,000 in campaign contributions from the logging industry during his career in the U.S. Senate.
But the decision by the 9th to defer to the agency on scientific issues doesn’t settle everything. While the 9th appears comfortable with the agency’s level of expertise—“we hold that the Forest Service must support its conclusions…with studies that the agency, in its expertise, deems reliable,” reads the ruling—the plaintiffs in the case are not convinced, believing standard agency reviews are insufficient. Woodbury, however, won’t say whether he is planning an appeal.
Regardless, the burden has been put back onto the shoulders of agency researchers like Ruggiero. And he says when the public fails to believe in the reliability of the agency’s science, the entire agency suffers.
“This point is often overlooked by those who would have scientists assist managers with litigation,” he says.