Transcription

Rich Ford: From Stanford University and SiriusXM, this is Stanford Legal. I’m Rich Ford.

Joe Bankman: And I’m Joe Bankman.

Today, we’re talking in front of a live audience with our colleague, Debbie Sivas, and Stanford law students, Sidni Frederick and Chris Meyer, about what makes endangered species worth protecting.

Rich, to kick this off, let me ask you a question. Why do we care if a species becomes extinct?

Ford: Well, some people would say that it’s just a loss generally. Something beautiful is lost from the world. Other people might also point out that when a species becomes extinct, it’s telling us something about what’s going on in the broader environment, that the endangered species are kind of canaries in the coal mine that might warn us of bigger environmental problems that are going to affect us all, like forest fires, the global warming, the degradation of the environment generally.

Bankman: One way or another, I think most of us, if you just press a button and say, “Extinct or not?” people press the not button. But I guess the tough issues come when there are tradeoffs, when we don’t quite know if it’s going to become extinct, but it’s becoming endangered; when it’s expensive to stop extinction, and so on.

Ford: Right. Where people may have to lose their jobs, or industries will have to change what they’re doing. Those tradeoffs are at the center of a legal issue that we’re going to talk about with our guests today.

Bankman: Right. Today, we’re going to talk about the possible extinction of a mammal called a Pacific fisher in the Southern Sierra with our guests. I want to start off by asking one of our guests, our longtime colleague, Debbie Sivas, tell us about the big picture posed by the case we’re going to talk about today.

Debbie Sivas: Sure. This is a case, as you said, Joe, that involves the Pacific fisher, recently listed as endangered under the Endangered Species Act. But we, as the clinic, took this case, mostly because it has broader ramifications for how the Forest Service is managing several forests on the Southern Sierra Nevada. Those are forests that have been hammered by climate change, drought, wildfire. So this was really a case to test if we could push the Forest Service in a new direction, a more ecologically sound management direction.

Ford: Now, I thought the Forest Service was there to preserve the forest. So why is it that you had to sue the Forest Service? What’s going on there?

Sivas: Well, the Forest Service manages those lands for multiple use, is what the statute says, but it has a longtime history of a lot of logging and timber coming off those forests. Still today, those forests are still a source of timber sales to private companies. So there is a little bit of a bias towards timber production over other uses of the forest.

Bankman: What’s wrong with timber production there?

Sivas: Nothing’s wrong with timber production. We all use paper and wood, but we want to do it in an ecologically sustainable way. That’s really the dispute is can you do it in a way that also protects species and the environment.

Bankman: If it isn’t ecologically sustainable, and I’m going to take it that, in this case, the clinic made the decision, it wasn’t, and is using the Endangered Species Act for its own purpose and for broader purposes, tell me what’s wrong, in the clinic’s mind or in your mind, with what’s happening in these forests. This is Southern Sierra Nevada, so places like Mount Whitney in California, or around that part of the world. What are they doing that’s wrong?

Sivas: Well, there’s been a lot of timber production over the years, so there’s very little mature, old growth forest. That’s going, to Rich’s point, the canary in the coal mine. The Pacific fisher uses that mature habitat. That’s what it needs to survive.

This is a case that looks across those forests, and tries to get the Forest Service to preserve those old growth forests. You might be able to continue to log younger forests or second growth forests, but we really have very little, about 10%, of the historic old growth forest. I think our clients in the case think we need to save every bit of that that’s left.

Ford: Other than the extinction of some of the species that rely on the old growth forest, what are some of the reasons that we should be especially concerned about losing those old growth forests? What are the ramifications of the path that we’re currently on?

Sivas: In addition to just protecting the species and the ecosystem that has evolved there, those are the forests that are most likely to protect us against future wildfire risks. If you’ve lived in California for the last couple of years, or probably anywhere in the West, you know wildfires have become a huge issue as the climate gets hotter and drier. Those old growth forests are really the coolest, wettest forests there are, so those are the ones we really want to preserve and protect. They serve as a carbon sink as well.

Ford: Wow. So you could say that this Pacific fisher is an indication of problems that are leading as they have more wildfires every summer. Could you just walk us through a little bit of some of why we’re having the increase in fires, and how the destruction of the old growth forests leads into that, other than it being a preservation for carbon?

Sivas: Sure. Historically, the Forest Service has suppressed fire on our national forests. That made sense in the mid-20th century, because we wanted to preserve that timber and preserve those environments. If they burned up, you didn’t have the timber.

But we’ve now learned that suppression of fire is actually not the way to keep those forests healthy, because they are naturally adapted to fire, so we need to actually let those fires burn. Those kind of fires, if they burn through those old growth forests, they burn at very low level. They’re ground fires, and they clean up the vegetation, but they don’t generally burn the big old trees, the things that are keeping the forest cool and dry.

There a needs to be a change in the management there. The Forest Service is moving towards that, but their response has been, “Well, we actually need to clear it all out, so we need to cut down a lot of those big trees and start over.” I would say the clients we represent don’t think that’s the way to go. That’s really the theoretical dispute.

Bankman: What are the clients we represent in this case?

Sivas: We represent three groups. One is Unite the Parks. Their mission is to have a continuous park from Yosemite all the way down to Sequoia Kings National Canyon. In between are the forest that we’re litigating over. So they’re looking to protect those more like a park, less like an operating forest.

The other groups in the case are the John Muir Project, which has been working on forestry issues for a long time, and the Sequoia ForestKeeper.

Ford: Debbie, you mentioned, it sounds like there are two fire suppression theories. The Forest Service theory is that you manage it a lot with human intervention, whether it’s logging and various things. You try to deprive the fires of fuel. The idea that you and some of your clients have is a different one, where it’s a more natural process, something that we would’ve seen before human intervention. Is that about right?

Sivas: I think that’s the basic dispute. I think it extends even beyond forests to other kinds of ecosystems, but that’s the main disagreement. There’s science out there. People can point to science on both sides.

I think our clients don’t object to doing some of that logging around urban communities. There are many communities … It’s called the wildland–urban interface. Communities that are built into the forest, you want to protect those from those catastrophic fires.

But in the back country, where there really aren’t a lot of people, other than maybe campers and hikers and stuff, I think our clients really think you should let those natural low level fires burn. That will be the way we get those forests back to ecological health.

Bankman: How do you take clients in the clinic, Debbie? Because I assume there are parties on all sides. We decide, or you decide, which parties to take. Some of it, I think, is an opportunity for our students to learn litigation skills, but maybe you could have taken any side here. How do you decide that?

Sivas: Well, we generally represent … You’re right, Joe, … Part of it is, is it a good opportunity for students? That’s the main thing, because the clinic functions to help give students those experiences. Then we look at the issue, and if we have expertise in the issue, and whether these clients need help.

So most of our clients, all of our clients almost, are non-profit organizations like the ones I mentioned. We occasionally will represent a government. Right now, we’re representing the Coastal Commission, kind of a unique representation for us. But normally it’s NGOs, non-governmental organizations, who don’t have the resources. We wouldn’t represent a private company in most cases, and we wouldn’t represent, mostly, a government agency, because they have their own lawyers and resources.

Bankman: I wonder if it would be about time just to introduce the case a little bit, because I think a lot of the issues become sharper and one of the fun things about law is that when you discuss things, you discuss it in a real life context.

Our students here. Welcome, Chris Meyer and Sidni Frederick. Chris, can I ask you just to jump in and describe the case a little bit, that you worked on?

Chris Meyer: Sure. I also think that, because the issues break down along two statutes, Sidni can certainly chime in on the National Environmental Policy Act issue.

The issue that I’ve mostly focused on was the Endangered Species Act issue. At its heart, what this was trying to figure out was in order for a federal agency to take the sorts of actions that the Forest Service wanted to take, if those actions would affect an endangered species, they’re required to consult on and issue a biological opinion that essentially establishes whether or not that action will harm the species.

Our fundamental dispute was with that biological opinion, because we believed, under the regulations of the Endangered Species Act, that that biological opinion was inadequate, that it didn’t actually analyze, in a meaningful way, what the existing population of the Pacific fisher was.

As a result, anything that was built on that, any argument in that biological opinion for how the Forest Service actions would affect the fisher were based on a faulty foundation, because the agency didn’t know how many Pacific fisher were there. So therefore, how can it conclude, it’ll only harm an acceptable number of the Pacific fisher. That was the crux of the Endangered Species Act claim.

Sidni Frederick: I worked on the National Environmental Policy Act claim. As a general matter, that statute, we call it NEPA, says that government agencies, when they’re taking actions that could significantly affect the environment, before they do that, they have to stop and assess the potential environmental consequences.

There’s a provision of that statute that says that after there are significant events that happen on a landscape where you’re planning to do a project, even if you’ve done environmental analysis before, it might be worth it to go back and check again, to make sure that all your prior assumptions are still true, and that the decision you made to go forward with a project, thinking that there were very few environmental consequences or that they could be mitigated, is still correct.

In this case, one of the core triggers for our case were the Creek and Sequoia complex fires, which burned in the Southern Sierra Nevada in the fall of 2020. The crux of our NEPA claim was that, because of these two fires, which burned in pretty central areas of fisher habitat, we through the Forest Service should have to go back and reanalyze the environmental impact that all the projects that planned to undertake could potentially have.

Really critically, we thought that the Forest Service needed to look at the impacts that all of these projects could have together cumulatively, because one of the biggest threats to the fisher that we see in terms of environmental impacts on the species, is that it’s really struggling with habitat fragmentation. So we thought it was really important to make sure that the Forest Service was going back and taking a look, not just at all the projects individually, but at the way that all the projects been looked at together could potentially contribute to further habitat fragmentation for the species as a whole.

Ford: Sidni, just to follow up on that last comment, when you say habitat fragmentation, could you just walk us through exactly what that is, and how the Forest Service proposals would have affected it?

Frederick: Sure. The fisher is a species that relies on having multiple different patches of really dense old growth forest habitat that are relatively intact. So it wouldn’t do to have a patch of old growth forest habitat that was checkerboarded with a lot of projects happening inside of it that disrupt the pattern of tree cover, for example.

The Forest Service, I think working with outside biologists, had come up with a strategy before the fires to say, “Okay. Here is where we think there is enough habitat for the fisher.” It was a conservation strategy that they developed in 2016, I believe.

But even around 2016 … The strategy was developed based on data that they had collected before 2016, habitat, vegetation data. Even at the time they released the conservation strategy, they realized, even since we collected the data and came up with a strategy, the forest has been fragmented just based on drought and other events that have been happening in the forest alone. So even before the 2020 fires, the forest already didn’t necessarily reflect the strategy that they had, to ensure that there was enough intact habitat for the fisher.

So in our case, and in our NEPA claim, our central concern was that the Forest Service and the scientists it was working with hadn’t even, in our mind, had enough time to come up with a new conservation strategy that reflected the landscape before the fires, and that now, after the fires, it was especially important that, before the Forest Service go forward with any of the projects that had previously planned, that it stop and take that extra time to make sure that, now, any impacts the projects would have would not be threatening to the species.

Bankman: We’re going to have a picture of the Pacific fisher on the website that’ll accompany our show, but I wonder if any of our guests can describe it just a little bit so we get a sense of what this animal is.

Meyer: Imagine … I don’t know. You jump in if I’m misstating it here. Imagine a cross between a domestic cat, a fox and a raccoon. About the same size as a domestic cat. Does that sound right?

Frederick: I think that makes sense. I think it’s … As far as I’ve seen in pictures, it’s usually dark brown.

Meyer: Yes.

Frederick: I don’t think I’ve seen it have any other fur pattern or color.

Meyer: They’re very furtive. They’re very sneaky. So they’re also like a domestic cat. They don’t … It’s very hard to actually see them in the wild. I think we were asked once, “You spent months on this. Have you ever actually seen one?” We were like, “On Google, but that’s about it.”

Frederick: Very few people have.

Sivas: There are only less than 300 of them in that population.

Bankman: Is that a distinct population, or are there some others in other places?

Sivas: It is a distinct population, and so they need to be protected separately. They’re isolated from populations up north. There is a Northern California, Southern Oregon population, which has a few thousand individuals, so it’s slightly bigger population, and not protected by the Endangered Species Act. But as far as they know, there’s no interaction between the two.

Ford: I see. Part of what you were saying was that we don’t know how many there are exactly, because some of the data is out of date. Is that right? That that’s one of the bases of the lawsuit is that the Forest Service was working on old information.

Meyer: Not only that the Forest Service was working on old information. The information they were working on was at least 15 years old, if not more. But that since that information had been collected, half of the fisher’s habitat had been altered in some meaningful away. It had been affected by drought. It had burned down. It had been infested by certain types of beetle.

What the Forest Service was essentially arguing is, “Don’t worry. We can still trust the information from 15 years ago,” when all of the underlying circumstances have changed. That was something that our clients weren’t prepared to accept.

Ford: Thank you. Well, we’ll be back with more from Debbie Sivas, Chris Meyer and Sidni Frederick about the Pacific fisher, wildlife trafficking and other issues of environmental law next on Stanford Legal on SiriusXM.

Welcome back to Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Rich Ford along with Joe Bankman. Today, we’re talking to Debbie Sivas, Chris Meyer and Sidni Frederick about the Pacific fisher and issues of environmental law.

You argued a case in front of the Ninth Circuit. What was it like working on that case? What was it like arguing in front of the Ninth Circuit as students?

Frederick: I can definitely say it’s took a lot of preparation. The case was argued January 12th. I think we started basically a month before that doing practice arguments, first just with Debbie and with outside counsel we were working with, and then bringing in some professors, both from other clinics, as well as professors just who taught normal, non-clinic classes in the law school, who were willing to jump in and help us. So a lot of preparation over the winter.

Then the argument itself, at that point, I definitely felt prepared. It just felt nice, at least to me, to feel like arguments I was making, and ideas I had come up with, were actually having an impact and being listened to by judges, people who don’t have to listen to anything I say, and especially who I knew, based on the panel we had drawn, might not necessarily be particularly sympathetic to our case. I would say that things went well.

Bankman: One thing you just mentioned, Sidni, that some of our listeners know and others don’t, is that when you to argue before a federal circuit court, you get a panel. It’s chosen out of a hat, so to speak. Some of the appointees come from a side that you might think will be sympathetic to your case, or have issued rulings that would be sympathetic to your case, and vice versa. It looked like you drew what seemed initially to be an unfavorable panel. It was two to one, maybe one would guess, against.

Frederick: That’s certainly what it seemed like, but I think, and maybe Chris can jump in here, during the argument, it seemed that, even so, all of the judges were listening and asking meaningful questions. It did seem like they, at least at some points, were satisfied by some of the answers to the questions that I gave. I think that’s reflected in the fact that we were able to get a favorable decision out of them.

Meyer: There was an interesting dynamic where Sidni and I spoke, we got some questions that were difficult and that we had to grapple up with, and it was clear that maybe one or two of the judges had some concerns about the case.

Then the government got up, and it was basically 20 minutes of them grilling the government. You’re in the situation where you’re saying, “Okay. I got some tough stuff, but it seems like the government’s getting some stuff that’s even tougher.” So what starts as some pessimism, gradually shifts to optimism by the time you get to rebuttal.

Ford: You won a victory. Now, you won what’s called a preliminary injunction. So maybe you could just tell us a little bit about exactly what was at stake and what’s next.

Meyer: Sure. Our clients had moved to enjoin the Forest Service projects in the trial court, and lost. We appealed that decision to the Ninth Circuit. The Ninth Circuit didn’t award our clients an injunction, but they did vacate the denial of the injunction.

Essentially, what they did was tell the trial court, “You didn’t properly consider the application for an injunction along certain lines. We’re going to send you back with instructions, and you have to take another crack at it.”

It was always going to be difficult, especially at the appellate level, to get an appellate court to enter an injunction or to ask the trial court to do so. So having them simply vacate and send it back, and give our clients another bite at the apple, was a good outcome for us.

Bankman: As a practical matter, how long does this stay things? Does it get argued again right away? Or does this give the ecosystem six months, a year? What’s the timing on that?

Meyer: The bulk of these projects are scheduled to commence in June. So obviously, we want enjoin them before that. What followed after the remand order was a flurry of motions between the two sides of trying to get the trial court to either issue relief prior to June, or to schedule briefing such that briefing on the renewed motion would be resolved by June.

It looks, and Sidni correct me if I’m wrong, that that latter path is where we went. At this point, what’s going to happen is the there’s briefing going on right now that the clinic’s handling. The hope is that the court will be able to issue a new decision on the preliminary injunction before most of these projects begin in June. So the timeline hasn’t been extended as much as maybe we’re just cutting it a little closer than we might otherwise like.

Bankman: So before June, the trial court is now going to reconsider the matter, taking into account the things it hadn’t taken into account earlier.

Sivas: We actually just filed our first opening brief to the trial court yesterday. Sidni and Chris are on their way to graduating, so we brought a new student in, a second year student who worked on the brief, and we filed it yesterday afternoon. So that’s all …

The Ninth Circuit did an unusual thing in response to our request, which was to order the trial court to do something expeditiously. Because this particular district, the Eastern district of California, is very overloaded with cases. So knowing that the summer logging season was coming up, the Ninth Circuit ordered the judge that we have to actually hear the matter before the summertime.

Bankman: For someone that doesn’t litigate, and while I’ve been a lawyer for many, many years, I’ve almost never litigated, the judge you get matters so much. We’ve talked about that in the panel, where it turned out, you couldn’t guess what the panel would decide ahead of time, just based on, say, who appointed them.

But now, you’re going back to a court that ruled the wrong way the first time, in our opinion. How does that feel? Can you even comment on it here, first of all? Because for all we know, the judge is an avid Stanford Legal listener. But what happens when you go back like this?

Sivas: It’s challenging. I do think the fact that we went up to the Ninth Circuit and reversed that order, that the judge will take a little bit harder look at the facts of our case here, which is … As I said, this court is quite overworked, so I’m hoping that we’ve done a good enough job in this newest brief to convince the court to really take a harder look at our arguments. I feel optimistic that we may prevail.

Bankman: Is there any possibility of settling when something like this happens? The government now has been told they really have to do this. They probably don’t want to recount everything and do all this hard work. Are there negotiations?

Sivas: We’ve been having discussions with the Forest Service all along. Once this round of briefing is done … We’ve asked our clients … We started this case with 45 projects that we were asking to enjoin. Now, we’re down to about 18, because we’ve really gotten down to the most important projects.

So we’re actually hoping that, once this quick briefing gets done, we’ll be able to sit down with the Forest Service and try to negotiate a solution. I don’t know how viable that is, but we continue to try.

Ford: Well, this case has broad implications for the way the Forest Service manages the forest generally. I wonder whether any of you might comment on what you think the prospects are for change at the Forest Service, given litigation like this. Is it possible that cases like this will convince the Forest Service to rethink some of its policies on a more general level, so that they don’t get sued the next time?

Meyer: I think that cases like this are common enough that I don’t know that it would cause any grand rethink in the way that the Forest Service tends to approach these operations, especially because Forest Service officials, like officials in many federal agencies, are career civil servants who have served under presidents or administrations of both parties, and have, just as is going to be the case with civil servants who last a long time in any agency, they have beliefs about how things should be accomplished and certain ways of doing things. I think, as Debbie alluded to at the beginning of our discussion, it’s not as if those approaches are entirely without merit.

So I’m skeptical that a discrete case like this would have sweeping ramifications, but I think it’s the nature of being an aspiring environmental litigator, at least, that you have to hope that you’re at least causing some rethink or some policy shifts on the margin, and that over time and an accumulation of these sorts of actions, you can affect some sort of change. But I don’t think, on an individual case level, you’re going to accomplish something like that.

Ford: Right, so it’s not this one case, but the good fight continues. Perhaps in a series of cases, we’ll see comprehensive change. Or maybe you just have to keep fighting case by case.

Well, it’s fascinating work. Thank you so much for talking to us, Debbie, Chris and Sidni, about the Pacific fisher, and issues of environmental law, and a fascinating case in front of the Ninth Circuit that our students got to work on.

Ford: I’m Rich Ford for Joe Bankman. This is Stanford Legal on SiriusXM Business Radio, channel 132.