Write So That You Cannot Be Misunderstood: Or Lose in Court Dave

In 1978 Jefferson D. Bates wrote a little book titled Writing with Precision: How to Write So That You Cannot Possibly Be Misunderstood. Good advice. Hard to follow. Most of us would do well to read this book and/or William Zinsser's On Writing Well. The Chief might want to buy a few hundred copies and distribute widely among various staff groups, line officers, and so on. For now, though, we are likely to see more of what the Ninth Circuit Court of Appeals handed the Forest Service last month.

On March 24 a Ninth Circuit panel of judges (John T. Noonan, A Wallace Tashima, and William A Fletcher) issued an opinion that ought to give FS managers and staff pause. In EARTH ISLAND INSTITUTE v. USFS [PDF] the Ninth Circuit reversed the District Court for the Eastern District of California and issued a preliminary injunction against the Power Fire Restoration Project and the Freds Fire Restoration Project on the Eldorado National Forest.

When viewed through the narrow lens of "writing so as not to be misunderstood," some points of the opinion prove interesting:

[7] NEPA's procedural requirements require agencies to take a "hard look" at the environmental consequences of their actions. …

[8] …When reviewing the adequacy of an FEIS's hard look, we follow a "rule of reason" approach, which requires "a pragmatic judgment whether the [FEIS's] form, content and preparation foster both informed decision-making and informed public participation." Native Ecosystem Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005); see also Dept. of Transp. v. Public Citizen, 541 U.S. 752, 767 (2004). …

… Agencies have wide discretion in assessing scientific evidence, but they must "take a hard look at the issues and respond[] to reasonable opposing viewpoints." Earth Island, 351 F.3d at 1301. "Because analysis of scientific data requires a high level of technical expertise, courts must defer to the informed discretion of the responsible federal agencies. Id. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own experts, even if a court may find contrary views more persuasive. At the same time, courts must independently review the record in order to satisfy themselves that the agency has made a reasoned decision based on its evaluation of the evidence." Id. (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)). ….

[9] The primary purpose of an FEIS is to allow for informed public participation and informed decision making. …40 CFR § 1502.8 requires that FEISs "be written in plain language and may use appropriate graphics so that decisionmakers and the public can readily understand them." … [Note that the court interpreted "public" as] "interested non-professional laypersons likely to be affected y actions taken under the [FEIS]." Or. Envtl. Council. V. Kunzman, 817 F.2d 484, 494 (9th Cir. 1987).

After laying the groundwork, the court cuts to the chase w/r/t the FEISs for the fire restoration projects and mandates for full disclosure and clarity:

[10] … Table 3-6, is, to say the lest, misleading. Its title is "Probability of Tree Mortality," rather than "Probability that Predictions of Probability of Tree Mortality and Survival are Correct." Second, there is no other table in the FEISs providing the probability of tree mortality. The absence of such a table is significant. The single most important aspect of the FEISs is their estimate of the likelihood that trees with certain amounts of fire damage will die. This is so for the obvious reason that the justification for cutting burned or scorched trees is the likelihood that they will die. Any readers of the FEISs will therefore look for a table providing probability of tree mortality. The only table in the FEISs that appears to provide that information is Table 3-6. It is not unforeseeable that a reader – even an expert reader… – would misunderstand the table. Further, the explanation for Table 3-6 provided by Smith's declaration [USFS expert witness] in the district court is nowhere provided in the FEISs. … The absence of such an explanation in the FEISs obviously increases the chance that the table will be misunderstood.. …

[11] In the end we conclude that the USFS abused its discretion in its estimates of the likely tree mortality in both … FEISs. … Table 3-6 is, for the reasons given above, extremely misleading. A casual, or even a careful, reader of the FEISs and of Table 3-6 could easily conclude that 96% of yellow pine with a minimum of 75% crown length scorch will die, or that 90% with a minimum of 65% crown length scorch will die. If those were, in fact, the percentages of yellow pine with that degree of fire damage that will die, it would be easy to conclude that the USFS is justified in cutting all yellow pine that satisfy those criteria. But those are not the percentages of tress that will die.

… It is possible that those who prepared the FEISs, and the Forest Supervisor who signed the RODs [Records of Decision] based on the FEISs, understood Table 3-6 in the way Royce [Earth Island's expert witness] understood it. If this is so, the USFS failed to take the requisite "hard look" at the data underlying their analysis and decision. Kern, 284 F.3d at 1066. It is also possible that those who prepared the FEISs, and the Forest Supervisor, understood Table 3-6 in precisely the way Smith described it in her declaration. If this is so, the USFS also abused it [sic] discretion, for it failed to reveal the actual percentages upon which it relied and it drafted highly misleading FEISs. Native Ecosystem Council, 418 F.3d at 965. Under the first alternative, the USFS misunderstood the data: under the second, it understood but concealed and misrepresented the data. Under either alternative, it abused its discretion.

There is much more to digest in the opinion, but we will skip to the court's conclusion:

We have noticed a disturbing trend in the USFS's recent timber-harvesting and timber-sale activities. … [trends and eight court case citations in original]

… It has not escaped our attention that the USFS has a substantial financial interest in the harvesting of timber in the National Forest. We regret to say that in this case, like the others just cited, the USFS appears to have been more interested in harvesting timber than in complying with our environmental laws.