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May 12, 2005

National Forest Management and the Law

Sometimes we stray too far from founding principles when trying to do our work. Sometimes an outsider’s perspective proves helpful to bring us back to the basics. The following was recently shared with Forest Service managers (Intermountain Region) by one of our USDA Office of General Counsel attorneys:


The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.  - Oliver Wendell Holmes Jr.

Nearly every lawsuit is an insult to the intelligence of both plaintiff and defendant.  - Edgar Watson Howe

The Departmental interpreters of the laws in Washington . . . can always be depended upon to take any reasonably good law and interpret the common sense all out of it. - Letter to H.C. Christiancy, Mark Twain, December 18, 1887.

I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution. - Ulysses S. Grant.

. . . It is not enough to say that the Forest Service has kept within the law.  Other qualifications go to make efficiency in a Government bureau.  A bureau may keep within the law and yet fail to get results.

When action is needed for the public good, there are two opposite points of view regarding the duty of an administrative officer in enforcing the law.  One point of view asks, “Is there any express and specific law authorizing or directing such action?” and, having thus sought and found none, nothing is done. The other asks, “Is there any justification in law for doing this desirable thing” and, having thus sought and found a legal justification, what the public good demands is done. I hold it to be the first duty of a public officer to obey the law. But I hold it to be his second duty, and a close second, to do everything the law will let him do for the public good, and not merely what the law compels or directs him to do.

. . . To every public officer the law should be not a goad to drive him to his duty, but a tool to help him in his work.  And I maintain that it is likewise his right and duty to seek by every proper means from the legal authorities set over him such interpretations of the law as will best help him to serve his country.  Let the public officer take every lawful chance to use the law for the public good. – “The Fight for Conservation,” Gifford Pinchot.

More often than not, the law does not provide a “cook book” for how things must or ought to be done.  Laws are subject to interpretation by judges, lawyers, bureaucrats, members of Congress, and the public.

There are varying ways that laws can be interpreted and implemented. Responsible public administration means getting the job done, or accomplishing agency objectives, within the legal parameters established by Congress.

Too often, the law is viewed as an obstacle, an impediment to "getting good things done on the ground." Equally often, and just as counterproductive, compliance with the law is deemed to be the ultimate objective, rather than the means to and end. As recognized by Pinchot, public administration requires a careful balance between these extremes. The law must be complied with, but compliance with the law is not the only measure of success. The measure of success is accomplishment of agency program objectives in compliance with the law.

Who manages the National Forests and public lands? The Constitution of the United States says:

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."  Art. IV, Sec. 3, cl. 2. 

The President of the United States “shall take Care that the Laws be faithfully executed”  Art. II, Sec. 3.

all executive and judicial officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Art. VI, cl. 3; 5 U.S.C. § 3331.

The Oath of Office required of all civil service employees is as follows:

I, _______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”

The “duties of the office” of civil service employees of the Executive branch is defined earlier in the Constitution as taking “Care that the Laws be faithfully executed.” Notably, the oath of office says nothing about “insuring that good projects get implemented on the ground.”

Congress has chosen to exercise its Constitutional power to manage the National Forests and public lands by creating executive agencies, such as the BLM and Forest Service, to carry on the day to day administration of those lands, and by enacting laws which direct generally how those lands are to be managed, and procedures to be followed in making decisions about the management of the public lands. These laws do leave discretion to land managing agencies to make technical decisions, but many procedural and policy decisions are limited. Under the Constitution and by their oath of office, Federal employees in the Executive branch are obligated to support the power of Congress over the public lands by obeying and implementing the laws that Congress enacts respecting the public lands.    

While it has been argued that this statutory direction is in some cases unclear, or even conflicting, carrying out the direction for public land management set forth by Congress is nonetheless the primary management objective for public land managers. Your success in meeting this objective will often be evaluated by the public through the Court system, which is the ultimate mechanism for holding Executive agencies accountable for carrying out Congressional direction.

How will you carry out this statutory direction? As is often the case, the best advice has already been given:

Any fool can make things bigger, more complex, and more violent.  It takes a touch of genius - -and a lot of courage - - to move in the opposite direction.  Albert Einstein

Ten Standard Orders for Coping with the Legal System

1.)  It is never acceptable to lose litigation, and we can prevent losses. We cannot carry out program objectives if we lose appeals and litigation which prevent or delay implementation of important projects and initiatives. We should do everything we reasonably can to prevent appeal and litigation losses.

2.)  It is not futile to try to win. We should be careful not to do things that convey a message or reinforce an attitude that it is too burdensome or futile to try to build a record and decision that will survive appeals and litigation. Folks will behave like helpless victims if they believe they are helpless victims of the legal system.

3.)  The Forest Service needs a "can do" attitude toward winning appeals and litigation. The Forest Service coined the phrase “can do” to reflect its approach to many challenges like wildland fire, fuels management, and budget limitations. We can control our destiny in the legal system if we work at it the right way.

4.)  The key to winning is not simply more process and analysis, but smarter process and analysis. We need to learn how to be smarter about process and analysis.  There are resources available to help do smarter process and analysis from S.O. staffs, R.O. staffs, Research, OGC, and other sources. Use them, they are there to help. In particular, OGC is there to help you understand the rules of the game that will be played in the legal system.

5.)  Playing the natural resource science game harder will not help to win at the legal game, any more than playing baseball harder would help to win at soccer. The Forest Service is designed to play a different game than the game that is played in the legal system. The rules of the natural resource management game call for the application of scientific principles to specific problems on the ground. The rules of the game in the legal system require that you show compliance with the law and demonstrate rational, objective, reasoned decision making through clear and concise documentation. You will not prevail in the legal system based solely on how good a project is on the ground or how good the science is which supports the project. Part of smarter process is using lawyers to help you better understand the game that is played in the legal system, and getting better at playing that game instead of continuing to just play your own game harder. 

6.)  Do not get bogged down in process and analysis thinking that quantity will solve the problem.  Doing more of the wrong thing will not help, no matter how much more of it you do. It is a mistake to think that simply doing more public involvement and analysis is going to help in the legal game. 

7.)  It is not the courts and lawyers who are imposing unwieldy process and analysis requirements. In addition to process predicament in project decisions, many plans, rules, and directives have been created by the Forest Service which impose unnecessary process and analysis, because they were created under the rules for the natural resources science game to try to win at the legal game. These institutional sources of process requirements can only be improved by the Forest Service.

8.)  Be careful what you read into court decisions. The legal significance of court decisions like Lands Council is not readily apparent to people who are not trained to read and interpret court decisions. In fact, it is difficult even for lawyers to interpret what court decisions really mean without a lot more information than what is often contained in the published decision. Similarly, those involved in the action being reviewed are often too close to objectively evaluate the outcome.

9.)  Natural resource science and management skills are not enough. Be committed to personal and organizational learning. New and diverse skills are needed to make and document resource management decisions that can win the legal game.

10.)  Meeting legal requirements leads to good public process and administrative decision making, and should not be viewed as inconsistent with good public land and natural resources management. The law is designed to encourage public collaboration, rational decision making, and use of objective, scientific information. This is entirely consistent with good public land and natural resource management. Besides, it is every bit as much of your job to comply with the law as it is to make “good” natural resource management decisions “on the ground.”

Posted by Dave on May 12, 2005 at 03:21 PM | Permalink


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