Sarcastic Lawsuits

by Andy Geissler, AFRC Field Forester

Last month, three organizations (Oregon Wild, Cascadia Wildlands, and Klamath-Siskiyou Wildlands) filed a lawsuit against a Bureau of Land Management (BLM) timber sale called Lower Grave in southwest Oregon.  Among the claims filed was that the BLM “failed to take the requisite “hard look” at the project’s potential environmental impacts to the northern spotted owl.” 

The term “hard look” is subjective and can thus be interpreted many ways.  Here, the challenge is specific to the agency’s “hard look” at the impacts to the northern spotted owl (NSO), a species listed as threatened under the Endangered Species Act.  The primary method that the BLM uses to take this hard look is through consultation with the Fish & Wildlife Service (FWS).  The vehicle for this consultation is called a Biological Assessment (BA) which is prepared by the BLM for every single vegetation management project that has a potential impact to the NSO or its habitat.  The BA summarizes the project’s impacts to the NSO following an analysis that includes surveys, habitat condition analysis on the landscape & local scale, and population trends.  Following its publication, the FWS reviews it and provides their feedback.  Typically, a single BA is prepared for each BLM vegetation management project and they average around 60 pages.  For the Lower Grave project, the BLM issued three BA’s.  Following the publication of the initial 59-page BA, the BLM made significant amendments over the next year and re-published that document twice.  These 100+ pages of analysis come in addition to a 250-page Environmental Assessment (EA).

And ultimately, this abundance in analysis and paperwork was greeted with a lawsuit claiming that the BLM failed to take a hard look.  It’s difficult to predict how a judge is going to interpret the term “hard look”, but I imagine that most rational minded people would find it hard to believe that three separate in-depth analyses in addition to a single larger analysis for a single project would fail to pass muster.  In light of what seems to be more than sufficient analysis, this lawsuit also begs the question as to whether such a claim even warrants judicial review.  It almost seems comical.  In fact, the claim resembles the kind of sarcastic response typically reserved for only the most absurd situations; i.e. “Only 350 pages of analysis?  C’mon BLM, I thought you were going to take a hard look!”  Unfortunately, these organizations are not being sarcastic, and they are likely hedging their bets on the possibility that whatever judge reviews this case won’t sense the irony in their claims.